State v. Matthew Curtis Sills

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.
February 13, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2022AP1390-CR Cir. Ct. No. 2016CF2395

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MATTHEW CURTIS SILLS,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DAVID L. BOROWSKI, Judge. Affirmed.

Before White, C.J., Geenen and Gill, JJ.

¶1 WHITE, C.J. Matthew Curtis Sills appeals from the judgment of
conviction, entered upon a jury’s verdict, for one count of first-degree child sexual
assault–sexual intercourse with a child under the age of thirteen. He also appeals
the order denying postconviction relief without a hearing. Sills argues that the
No. 2022AP1390-CR

trial court’s objective bias denied him of his constitutional right to a fair trial and
that his attorney provided ineffective assistance of counsel. We reject both
arguments and affirm.

BACKGROUND

¶2 In June 2016, Sills was charged with first-degree sexual assault of a
child–sexual contact with a child under the age of thirteen, contrary to WIS. STAT.
§ 948.02(1)(e) (2021-22),1 based on his seven-year-old daughter, Elizabeth,
reporting that Sills sexually assaulted her between November or December 2015
through May 2016.2 After negotiation with the State, Sills entered a guilty plea in
February 2017 to an amended charge of second-degree sexual assault–sexual
contact of a child under the age of sixteen, contrary to § 948.02(2). In May 2017,
Sills moved to withdraw his plea, and after an evidentiary hearing, the circuit court
found that Sills had not presented a fair and just reason for plea withdrawal and
denied his motion.3 The circuit court sentenced Sills to fifteen years of
imprisonment, bifurcated into nine years of initial confinement and six years of
extended supervision.

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

We have adopted the pseudonym Elizabeth to protect the victim’s identity. See WIS.
2

STAT. RULE 809.86 (2021-22).
3
The Honorable Jeffrey A. Wagner presided over Sills’s initial case, conducted the plea
colloquy, denied his motion for plea withdrawal, and sentenced him. We refer to Judge Wagner
as the circuit court.

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¶3 Sills appealed and in January 2020, this court concluded that Sills
presented a prima facie case of a Bangert4 violation in the plea colloquy and
allowed him to withdraw his plea. See State v. Sills, No. 2018AP1053-CR,
unpublished slip op. (WI App Jan. 14, 2020). Sills returned to trial posture and the
State amended the information to charge him with first-degree child sexual
assault–sexual intercourse with a child under thirteen, contrary to WIS. STAT.
§ 948.02(1)(e).

¶4 The State filed a motion to introduce two matters of other acts
evidence: (1) that in October 2012, Elizabeth’s mother reported to Monroe
County Department of Human Services that Sills had sexually abused Elizabeth on
two prior occasions when they lived in Tomah when she was about three or four
years old (“the Tomah allegations”); and (2) that in 2016, during the investigation
of the crime underlying this case, a Milwaukee County District Attorney’s Office
investigator recovered the internet history on Sills’s Xbox 360, which showed
searches that included “Father daughter taboo sex porn tube movies” and visits to
pornographic websites.

¶5 The case proceeded to a jury trial in February 2021. The trial court,
addressing the parties prior to the beginning of trial, referred to the our decision
allowing Sills to withdraw his plea as a “tortured and … incorrect interpretation of

4
State v. Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986) (“Whenever the
[WIS. STAT. §] 971.08 procedure is not undertaken or whenever the court-mandated duties are not
fulfilled at the plea hearing, the defendant may move to withdraw his plea.”). Sills alleged that
the circuit court “misinformed Sills of the potential punishment he faced if convicted—
information that the trial court was required to give him.” State v. Sills, 2018AP1053-CR,
unpublished slip op. ¶38 (WI App Jan. 14, 2020). The court failed to inform him that there was a
risk of a fine of up to $100,000. Id., ¶5. As we stated in our prior decision, “the State did not
present any evidence and it does not argue on appeal that the record shows that Sills had
knowledge of the fine.” Id., ¶38

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this entire matter[.]”5 The trial court stated “neither side should be discussing,
obviously, the fact that the defendant entered a guilty plea; that he then filed an
appeal; [or] that [the circuit court] was reversed[.] The trial court continued, “the
logic or … illogic of the [c]ourt of [a]ppeals,” was not relevant or important.

¶6 Before the trial began, the trial court denied the State’s motion to
admit other acts evidence of the Tomah allegations. The State, arguing for its
inclusion, asserted that because of the time between the charges in 2016 and the
trial in 2021, Elizabeth might have a hard time differentiating these allegations and
the Tomah allegations. She was three or four years old at the time of the Tomah
allegations, she was seven during the alleged crime on trial, and she was now just
past her twelfth birthday. Trial counsel opposed the motion and pointed out that
Elizabeth’s mother brought the allegations to the authorities, but Elizabeth never
made a statement that she was actually sexually assaulted and the claim was
deemed unsubstantiated. The trial court ruled that the Tomah allegations “should
… stay out generally,” the “State should try to keep it out,” but the court
recognized that a “very, very young child [was] taking the stand, a child that’s just
turned [twelve] a couple of weeks ago.” However, the trial court further
concluded that “[i]f something comes out, it depends how [it] comes out. It
depends on what’s said. It depends on what the jury hears…. [I]t may be nothing
or it may be something.”

¶7 During voir dire, the State explained to the potential jurors that DNA
and other scientific evidence is often not available in sexual assault cases, and that

5
The Honorable David L. Borowski presided over Sills’s trial after the case was
remanded by this court, sentencing, and denial of postconviction relief after the trial. We refer to
Judge Borowski as the trial court.

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No. 2022AP1390-CR

it plays less of a role in real-life prosecutions than it does in television crime
dramas. After multiple prospective jurors raised their hands when the State asked
if anyone “needs DNA evidence” from the State to convict, the court addressed the
prospective jurors stating that “in terms of the evidence, you need to all be able to
accept and analyze whatever evidence is presented,” and not “speculate or wish”
that the State had presented DNA, fingerprint, or other scientific evidence.
The court continued that the jury would have to analyze the case “according to
rules” given by the court.

¶8 The trial began with the State calling the forensic interviewer with
Children’s Wisconsin at the Milwaukee Child Advocacy Center who interviewed
Elizabeth in 2016. The jury was shown segments of Elizabeth’s recorded
interview. The State called J.R., Elizabeth’s mother, who testified about taking
Elizabeth to the hospital to investigate her concerns about Sills sexually abusing
Elizabeth.

¶9 The State called Elizabeth, who testified that around age seven, she
had to move away from her father after telling her mother and the police about
“gross stuff” her father did to her. She explained that the “gross stuff” was “sex.”
She stated that she told the truth when she told the police about the assaults.
When asked about a time her father had sex with her, Elizabeth responded, “I kind
of think it all started maybe when I was around three or four.” The State
redirected her to ask if she remembered a time her father had sex with her in
Cudahy (where she lived at the time of the assault in the criminal complaint).
Elizabeth said “no” and when asked the last time she remembered any sex
between her father and her, she said she was “[m]aybe four[.]”

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No. 2022AP1390-CR

¶10 Elizabeth was asked about what happened with her father; she
testified that while she sat on his lap, he showed her “gross” sexual videos and
touched her vaginal area. She felt his finger go inside her. He “ended up sticking
his pee thing inside of [her] butt.” She stated they played the “horsy game” in her
parents’ bedroom, during which she was “on top of the thing, the gross thing
and … I would go up and down.” She clarified that the “gross thing” was Sills’s
penis.

¶11 Elizabeth testified that Sills told her not to tell her mother. When
her mom was working, Sills would watch Elizabeth, and he made her touch his
penis. Elizabeth testified that Sills showed her a video of “a guy going up into this
one room and then a cop going in and then when the guy got out he had like blood
all over him and bruises and stuff, and he said that this is the reason why you
shouldn’t tell.”

¶12 During cross-examination, Elizabeth testified that she remembered
the place she lived with her mother and father in Cudahy and that her father had
sex with her there.

¶13 The State called a Milwaukee County District Attorney’s (DA)
office investigator, who testified about a recorded jail call that Sills made to his
sister, and then later played portions of the call for the jury. In the call, Sills refers
to Elizabeth, her mother, and his sister by name. Sills stated that he was
“concerned that his wee-wee might become exposed” when he was wearing boxer
shorts and Elizabeth had on a short, pink miniskirt and he was putting lotion on his
hands. Sills stated in the call that “at some point his finger may have made
contact” with Elizabeth when she got onto his lap, at “which point he pushed her
off on to the bed” and shouted obscenities at her. Sills stated words to the effect of

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No. 2022AP1390-CR

“you stupid, fucking bitch, telling all those fucking lies. I should beat your
fucking ass.” In the call, Sills blamed Elizabeth for the criminal case.

¶14 Sills testified in his own defense. He denied sexually assaulting
Elizabeth in any way. He acknowledged that when he watched Elizabeth, they
would play “horsy,” during which he crawled on the floor and she’d hop on his
back and say “giddy-up.” He denied that there was sexual contact. When asked
about the jail phone call, he stated that he “was kind of over-exaggerating a little
bit on the phone call” to explain to his sister why Elizabeth was confused in her
accusation.

¶15 Trial counsel asked Sills if he remembered an event or time when
Elizabeth misunderstood what was happening and thought Sills was “sexually
assaulting her or penetrating her?” Although initially he denied it, Sills then
responded, “[a] long time ago when she was three, though. Do you want me to
explain what happened?” Trial counsel said “[n]o” and moved on. During cross-
examination after a sidebar, the State returned to the topic and asked Sills if there
was an allegation and investigation into whether Sills had assaulted Elizabeth
when she was three years old. Sills agreed. With the jury out of the courtroom,
the trial court memorialized the sidebar, stating its finding that that Sills had
“opened the door” to the Tomah allegations and the State was allowed to cross-
examine him. Ultimately, the jury returned a guilty verdict.

¶16 At the sentencing hearing, Elizabeth’s mother, with Elizabeth
present, read a note from Elizabeth expressing that she was sad that she did not
have a dad. The mother explained that “ever since the retrial,” Elizabeth had
“been having episodes of inappropriate behavior and self-destructive behavior,”
for which the mother was working with a psychiatrist, counselor, and her school.

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No. 2022AP1390-CR

She stated that Sills “has been abusive physically, mentally and sexually hurting
his daughter.”

¶17 The State reviewed the details of the case, plea, and trial, and then
let the court know that in addition to the jail phone call, the DA’s office
investigator recovered letters Sills sent to his mother in which he stated that he
would “sign his rights off to [Elizabeth]. He just doesn’t want to go to prison.”
Further, he stated that “this is not about [Elizabeth], it’s about me[.]” Sills
instructed his mother to talk to Elizabeth and tell her “to tell the truth, just like in
Tomah” and that “if [Elizabeth] says she lied, then I can sue the cops and we can
get a thousand dollars a day.” The State described the letters as “incredibly
manipulative.” The court questioned the State about the letters and asked if Sills
telling his mother to talk to Elizabeth and “tell her to say she lied” would mean
that “he knows [Elizabeth is] telling the truth[.]” The State responded, “Correct.”

¶18 Trial counsel addressed the court and argued that Sills has cognitive
disabilities exacerbated by use of drugs and a family history of incest abuse. He
explained that Sills wanted to withdraw his plea because he was not guilty and that
he did not come up with the plea withdrawal strategy that prevailed at the court of
appeals. Trial counsel stated to the trial court “if you agree or disagree with the
[c]ourt of [a]ppeals[] decision … that’s not something that should specifically be
taken out on” Sills. Trial counsel stated, “Your Honor saw him on the stand. I
think his cognitive limitations were apparent and evident. He testified terribly.”
He referenced that the trial court had decided not to allow in the other acts
evidence “until Mr. Sills got up on the stand and opened the door to all of that.”

¶19 Sills also addressed the court, stating, “I am sorry that the court had
to hear sick things that I did not do. I am not guilty.” He stated that he believed

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No. 2022AP1390-CR

Elizabeth would tell the truth after she was eighteen, continuing that “[m]y life
ended when my own kid, my own child that I was raising said a bunch of sick lies
about me, about her own father.”

¶20 The trial court then began its sentencing remarks, beginning with the
procedural history noting that “what the [c]ourt of [a]ppeals ruled[] has nothing to
do directly with my sentence[.]” The court commented that Sills got “a second
trial on what I would consider an absolute and total technicality.” The court stated
it had “significant respect” for the court of appeals, but it found its “decision to be
preposterous.” The court stated that it gave the procedural background because
the case was in a different position than it was during Sills’s plea to the circuit
court. It considered that when the circuit court sentenced Sills to fifteen years of
imprisonment, “that was for the defendant who had pled guilty, who had accepted
responsibility, who had said I did commit a sexual assault of my own daughter,”
and by “pleading guilty avoided having a trial, not for his sake but for the victim’s
sake.” The court then noted that it was sentencing Sills about five years later and
that “none of that now is true.”

¶21 The trial court stated that the underlying facts of what Sills did to his
own daughter were “sick, disgusting and vile.” The court considered that instead
of acting as a parent and protecting his daughter, Sills victimized her. The court
stated that Sills’s explanations “during the trial were not believable, so you’ve
aggravated the circumstances you were in a few years ago with [the circuit court]
in every way you can.” The court determined that while the underlying facts and
gravity of the offense remained the same, “every other thing I need to look at is
not the same.” The court acknowledged that Sills had his right to trial restored by
the court of appeals decision, but concluded Sills was “a serious danger to the
community.” The court concluded that Sills’s choice to contest his daughter’s

9
No. 2022AP1390-CR

allegations instead of taking responsibility affected the court’s assessment of
Sills’s character.

¶22 The trial court dismissed the idea that Elizabeth was lying and noted
that she was traumatized by the abuse as well as the trial. The court stated that
Sills’s behavior was “sick and twisted,” that “of a pedophile … who needs to go to
prison for a long time.” The court was “not impressed” with Sills calling his
daughter “a stupid, fucking bitch” and threatening to “beat her ass,” evidence that
came out only as the result of the trial. The court said that the need to protect the
victim and “other children of any sort” required a lengthy prison sentence.

¶23 In determining the sentence, the trial court said that it was
“tempt[ed]” to follow the State’s recommendation of thirty to thirty-five years of
initial confinement given that Sills “presented to the court with very, very few, if
any, redeeming qualities[.]” The court observed that “Mr. Sills, you did all that to
your own daughter, and you sit here as nonplus[sed] and unfazed as anybody I’ve
ever seen sit here. You are a bad actor. You are what prisons are designed for to
protect the rest of society from people like you.” In discussing its sentencing
considerations on the record, the court took into account Sills’s need for
rehabilitation, the need to protect the public, the gravity of the offense,
dangerousness, and the totality of the circumstances. The trial court sentenced
Sills to thirty years of imprisonment, bifurcated as twenty years of initial
confinement and ten years of extended supervision.

¶24 Sills filed a postconviction motion for a new trial, arguing that the
trial court’s “frequently expressed frustration with the [c]ourt of [a]ppeals
‘preposterous’ ruling permitting the defendant to exercise his right to a trial
constituted objective bias.” He further asserted that trial counsel provided

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No. 2022AP1390-CR

ineffective assistance of counsel in its handling of the Tomah allegations and for
not seeking the court’s recusal. The trial court rejected both arguments and denied
Sills’s motion without a hearing.

¶25 Sills now appeals.

DISCUSSION

¶26 Sills renews his postconviction arguments on appeal. First, he
argues that the trial court’s objective bias denied his constitutional right to a fair
trial.6 He also argues that the record reflects actual bias in three respects: the
court’s comments during voir dire, the court’s handling of the Tomah allegations,
and the court’s discretion at sentencing. Second, he asserts that trial counsel’s
deficient performance denied him of his constitutional right to the effective
assistance of counsel. For the reasons discussed below, we reject both arguments.

I. Judicial bias

¶27 A basic requirement of due process is a fair trial before a fair judge.
Caperton v. A.T. Massey Coal Co. Inc., 556 U.S. 868, 876 (2009). “There is a
presumption that a judge acted fairly, impartially, and without prejudice.” State v.
Herrmann, 2015 WI 84, ¶3, 364 Wis. 2d 336, 867 N.W.2d 772. “A defendant

6
Although the State argues that Sills forfeited his judicial bias claim by failing to raise it
during the trial, we decline to apply the forfeiture rule. The forfeiture rule is a principle of
judicial administration. State v. Huebner, 2000 WI 59, ¶11, 235 Wis. 2d 486, 611 N.W.2d 727.
“The purpose of the ‘forfeiture’ rule is to enable the circuit court to avoid or correct any error
with minimal disruption of the judicial process, eliminating the need for appeal.” State v. Ndina,
2009 WI 21, ¶30, 315 Wis. 2d 653, 761 N.W.2d 612. Here, Sills argued that judicial bias
impaired his right to a fair trial in his postconviction motion before the trial court. The trial court
addressed and rejected Sills’s argument. Therefore, there is no issue of blindsiding the trial court
or the State. As both parties have briefed the issue before the trial and appellate court, we address
his claim on the merits. See id., ¶38.

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No. 2022AP1390-CR

may rebut the presumption by showing that the appearance of bias reveals a great
risk of actual bias.” Id. We independently review the question of law of whether
a judge was objectively not impartial. State v. Pirtle, 2011 WI App 89, ¶34, 334
Wis. 2d 211, 799 N.W.2d 492.

¶28 Sills asserts that the trial court’s frustration with the court of appeals
decision allowing him to withdraw his plea constituted objective bias, as shown by
trial court commenting on the decision multiple times. The record reflects that
prior to the beginning of the trial, the court referred to the court of appeals
decision as a “tortured and … incorrect interpretation of this entire matter.”
Second, the trial court asked whether the State could have charged him with a
count that had a mandatory minimum sentence—it could have, but the case was
not prosecuted in that way. Third, when the State moved to allow in Elizabeth’s
forensic interview, which was unopposed by the defense, the trial court
commented that “the only reason we’re here four years later is because of the
defendant’s actions and because of the [c]ourt of [a]ppeals or it would have been
automatically allowed” if Elizabeth were under twelve years old. 7 Finally, Sills
asserts that the court unfairly blamed him for the four-year delay, arguing that the
delay was largely due to congestion at the trial and appellate courts and not his
choices.

7
WISCONSIN STAT. § 908.08 governs the admission “into evidence the audiovisual
recording of an oral statement of a child who is available to testify[.]” In assessing such an
admission, the trial court considers whether the “the trial … in which the recording is offered will
commence” “[b]efore the child’s 12th birthday”; or “[b]efore the child’s 16th birthday and the
interests of justice warrant its admission” under factors set forth in subsection (4). Id. Here,
Elizabeth had just turned twelve; therefore, the court’s considerations were greater than just her
age.

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No. 2022AP1390-CR

¶29 The State contends that Sills misconstrues the record, arguing that
the trial court clearly acknowledged that Sills had the right to appeal and that it
was not holding its disagreement with the court of appeals against Sills. The State
asserts that the trial court’s statement: that “the only reason we’re here four years
later is because of the defendant’s actions and because of the [c]ourt of [a]ppeals”
was not expressing bias, but explaining that the statutory standard changes when
the trial is held after the victim is twelve years old. The State also argues it is pure
speculation that the trial court’s question about whether Sills was charged with a
count with a mandatory minimum sentence showed bias. Instead, the State posits
it was a reflection of the court’s desire to understand the prosecutor’s charging
decision under a complex statutory scheme.

¶30 Sills argues that the trial court showed additional instances of
objective bias during the sentencing hearing, where the trial court stated that “what
the [c]ourt of [a]ppeals ruled[] has nothing to do directly with my sentence.” Sills
asserts the word “directly” undermines confidence in the court’s objectivity. The
court also stated that Sills’s second trial was based on “an absolute and total
technicality” that “effectively” gave him a “second kick at the cat[.]” The trial
court, criticizing the court of appeals decision, dismissed whether the circuit court
“glossed” over the possibility of a fine, concluded “who cares,” noted that it could
not “think of any homicide or sexual assault in my career that I imposed a fine
on,” and doubted if the circuit court ever had imposed such a fine. The trial court
noted that there were fewer appeals after a guilty plea than “an appeal after a trial
which makes sense obviously,” which Sills argues means that the court’s
statement implied that his appeal did not make sense.

¶31 The State again contends that Sills misconstrues the trial court’s
sentencing remarks. The record reflects that the court stated that the “appellate

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No. 2022AP1390-CR

process … itself has nothing to do with my sentence.” In its postconviction
decision, the court stated, “The court meant what it said: the fact that the
defendant pursued an appeal and won, and exercised his right to a jury trial
afterward, did not have any impact on the court’s sentence.” (Emphasis omitted.)
The court relied on State v. Fuerst, 181 Wis. 2d 903, 915, 512 N.W.2d 243 (Ct.
App. 1994), which concluded that a trial court has “the opportunity at the
postconviction hearing to clarify its statements” on sentencing rationale, and that
the appellate court can infer meaning from those remarks. Here, the trial court
repeatedly stated that it was not holding against Sills its dissatisfaction with the
court of appeals decision. Further, we interpret the court’s comment that there are
obviously more appeals after cases that go to trial to express the court’s
understanding of the appellate process, as opposed to an attack on Sills’s right to
seek plea withdrawal and appeal.

¶32 The State further argues that even if the trial court’s criticism of the
court of appeals decision could be tied to Sills as the beneficiary of the reversal,
negative remarks “do not automatically equal bias[.]” Pirtle, 334 Wis. 2d 211,
¶34. Quoting the United States Supreme Court, the Pirtle court noted “that
expressions of impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women … sometimes display” do
not establish bias or partiality. Id. (quoting Liteky v. United States, 510 U.S. 540,
555-556 (1994). While we agree that the court’s comments were negative and the
trial court’s opinion of the court of appeals decision showed dissatisfaction and

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No. 2022AP1390-CR

anger, under the totality of the circumstances, the court’s statements do not
demonstrate objective judicial bias.8

¶33 While objective judicial bias does not require proof of actual bias, an
objective bias claim is stronger if actual bias can be shown. See Herrmann, 364
Wis. 2d 336, ¶46. Sills contends that there were three instances of actual bias
against him: the trial court’s comments on DNA evidence during voir dire, the
trial court’s handling of the other acts evidence of the Tomah allegations, and the
sentence the court imposed. The State argues that these instances do not constitute
actual bias, but were wholly appropriate and driven by the circumstances and the
court’s stated reasons.

¶34 First, Sills argues that the trial court created a risk of prejudice by
affirming the State’s questions on the necessity of DNA evidence to convict. Sills
contends that the trial court’s comments were unnecessary and that the State was
making the same point. The State argues that the court’s comments were
appropriate in the context of the prospective jurors’ responses. We conclude that
the court’s statement did not constitute objective or actual bias because it merely
stated the law.

¶35 Second, Sills argues that the trial court exhibited actual bias in its
method of excluding the other acts evidence of the Tomah allegations prior to trial.
Sills contends that it was no surprise that the Tomah allegations seeped in to the
trial when the trial court ruled that it may allow testimony about the allegations in

8
We note that this court does not condone the trial court’s repeated negative
commentary on Sills’s previous appeal that restored his trial right. Under the totality of the
circumstances, the court conducted a fair trial. Although the court kept its comments from the
jury, the court’s vocal opinions were unnecessary and resulted in this examination for bias.

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No. 2022AP1390-CR

“depend[ing] on what’s said” and “what the jury hears.” In its postconviction
decision, the court considered its ruling to be rooted in the practical realities of the
prosecution of sexual assault against very young children, relying on State v.
Fawcett, 145 Wis. 2d 244, 254, 426 N.W.2d 91 (Ct. App. 1988) (“The vagaries of
a child’s memory more properly go to the credibility of the witness and the weight
of the testimony[.]”). Our examination of the record shows that the trial court’s
admonishment against the Tomah allegations being introduced as other acts
evidence indicated its position against the State introducing the evidence.
However, the court left open the possibility of the information being admitted
depending on the circumstances, with an awareness of Elizabeth’s age and the
effect of time on her memory. The record reflects that the State did not pursue
questioning Elizabeth about the Tomah allegations. In contrast, Sills himself
opened the door. We conclude that the trial court’s handling of Elizabeth’s
testimony about the Tomah allegations did not constitute actual bias.9

¶36 Third, Sills argues that the trial court’s sentencing showed actual
bias because the court’s frustration with the court of appeals decision was an
impermissible factor affecting sentencing. When imposing a sentence, the
legislature has prescribed that the court “shall consider all of the following:”
(1) “The protection of the public”; (2) “The gravity of the offense”; (3) “The
rehabilitative needs of the defendant”; and (4) “Any applicable mitigating factors
and any applicable aggravating factors, including” those specified in that statute.

9
The State argues that Sills has failed to develop an argument that the trial court’s
decision to admit this evidence was an erroneous exercise of discretion. See State v. Hurley,
2015 WI 35, ¶28, 361 Wis. 2d 529, 861 N.W.2d 174. While we agree that Sills’s argument was
not grounded on evidentiary admission standards, we address his claim as presented as an
instance of actual bias, not trial court error.

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No. 2022AP1390-CR

WIS. STAT. § 973.017(2). Our “review is limited to determining if discretion was
erroneously exercised.” State v. Gallion, 2004 WI 42, ¶17, 270 Wis. 2d 535, 678
N.W.2d 197. “When discretion is exercised on the basis of clearly irrelevant or
improper factors, there is an erroneous exercise of discretion.” Id.

¶37 Sills asserts that the trial court’s frustration with the court of appeals
was an improper factor. He contends that the court’s pervasive complaints that the
appellate decision was preposterous or illogical undermines confidence that Sills
was sentenced fairly. He argues that the court unfairly blamed Sills for the delay
in the second trial, and asserts that the imposed sentence after trial was twice as
long as the plea sentence, which showed evidence of actual bias.

¶38 The State argues that that the trial court imposed the sentence with
the proper factors in mind and that the additional time imposed reflected the
information about Sills’s crimes that were brought before the court in the trial.
The record reflects that the trial court properly considered the Gallion factors
when it imposed the sentence. The court considered the significant need to protect
the public, due to Sills’s “vile” behavior and that he was a “serious danger” to the
community. The trial court considered the gravity of the offense, noting that it
was the same as originally charged, but that Sills’s unbelievable testimony
“aggravated the circumstances” of the case “in every way” compared to the
posture of the case before the circuit court. Further, the trial court considered
Sills’s needs for rehabilitation, which it determined could only be met through an
extended prison term. We do not interpret the court’s statements as disparaging
Sills’s restored right to trial. Rather, the statements reflect that Sills chose not to
accept responsibility and to contest his daughter’s allegations, which affected the
court’s assessment of Sills’s character.

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¶39 We conclude that the trial court did not use its frustration with the
court of appeals decision as an improper factor when it imposed the sentence. The
record reflects ample evidence supporting the court’s discretion in its sentencing
decision. Moreover, the sentence was within the maximum allowed by statute. It
was not “so excessive and unusual and so disproportionate to the offense
committed as to shock public sentiment and violate the judgment of reasonable
people concerning what is right and proper under the circumstances.” Ocanas v.
State, 70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). We conclude that the
sentence did not constitute actual bias.

¶40 Finally, Sills contends that the alleged instances of bias should be
considered in aggregate as evidence of the appearance of bias. “When the
appearance of bias reveals a great risk of actual bias, the presumption of
impartiality is rebutted, and a due process violation occurs.” Herrmann, 364 Wis.
2d 336, ¶46. When we consider the instances of objective or actual bias alleged
by Sills in the aggregate, we conclude that Sills has not overcome the presumption
that the trial court was fair and impartial. Id., ¶3. Our examination of the record
shows that the trial court separated its unhappiness with the court of appeals from
the case against Sills. Whether viewed individually or cumulatively, the court’s
comments do not create an appearance of animosity toward Sills, much less an
actual bias against him. We conclude that Sills’s longer sentence after trial was
not imposed improperly.

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II. Ineffective assistance of counsel

¶41 The trial court denied Sills’s postconviction claim of ineffective
assistance of counsel without a Machner10 hearing. “Whether a defendant’s
postconviction motion alleges sufficient facts to entitle the defendant to a hearing
for the relief requested is a mixed standard of review.” State v. Allen, 2004 WI
106, ¶9, 274 Wis. 2d 568, 682 N.W.2d 433. We begin by independently
reviewing two questions of law. State v. Jackson, 2023 WI 3, ¶8, 405 Wis. 2d
458, 983 N.W.2d 608. First, we review “whether the motion on its face alleges
sufficient material and non-conclusory facts that, if true, would entitle the
defendant to relief.” Id. “Second, we determine whether the record conclusively
demonstrates that the defendant is not entitled to relief.” Id. If the motion
supports relief based on those two questions, then “the circuit court must hold an
evidentiary hearing.” Allen, 274 Wis. 2d 568, ¶9. However, “if the record
conclusively demonstrates that the defendant is not entitled to relief, then either
option—holding a hearing or not—is within the circuit court’s discretion.” State
v. Ruffin, 2022 WI 34, ¶28, 401 Wis. 2d 619, 974 N.W.2d 432. “We review a
circuit court’s discretionary decisions under the deferential erroneous exercise of
discretion standard.” Allen, 274 Wis. 2d 568, ¶9.

¶42 Thus, to prevail on his claim, Sills must allege sufficient material
facts to show ineffective assistance of counsel, as described in the two-prong test
in Strickland v. Washington, 466 U.S. 668 (1984). The defendant must show

10
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). This court
established that “it is a prerequisite to a claim of ineffective representation on appeal to preserve
the testimony of trial counsel” in an evidentiary hearing, known as a Machner hearing, which
allows a reviewing court to “determine whether trial counsel’s actions were the result of
incompetence or deliberate trial strategies.” Id., at 804.

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both that counsel’s performance was deficient and that the defendant was
prejudiced by counsel’s performance. Id. at 687. “Counsel’s conduct is
constitutionally deficient if it falls below an objective standard of reasonableness.”
State v. Thiel, 2003 WI 111, ¶19, 264 Wis. 2d 571, 665 N.W.2d 305. To prove
that counsel’s deficient performance prejudiced his defense, “[t]he defendant must
show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. In our analysis, we “may reverse the order of the two
tests or avoid the deficient performance analysis altogether if the defendant has
failed to show prejudice” from counsel’s performance. State v. Johnson, 153
Wis. 2d 121, 128, 449 N.W.2d 845 (1990).

¶43 Sills argues that trial counsel’s performance was deficient in two
ways: (1) how it handled the references to the Tomah allegations both by
Elizabeth and by Sills; and (2) in failing to move for recusal by the trial court. He
contends that trial counsel’s deficient performance prejudiced his defense, and
therefore, he was denied his constitutional right to the effective assistance of
counsel. From our examination of Sills’s postconviction motion, we conclude his
allegations are largely conclusory. A postconviction motion must allege “who,
what, where, when, why, and how” the defendant’s claim is entitled to relief.
Allen, 274 Wis. 2d 568, ¶23. Sills’s allegations do not satisfy this standard.
However, even if we were to accept that trial counsel’s performance was deficient,
Sills has failed to make a showing that trial counsel’s performance prejudiced his
defense. See Johnson, 153 Wis. 2d at 128.

¶44 For Sills’s first claim of ineffectiveness, he argues that trial counsel
was ineffective for failing to insist on a “firmer ruling” prior to trial on the

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No. 2022AP1390-CR

admission of the other acts evidence of the Tomah allegations. He argues that trial
counsel should have objected when Elizabeth testified that the assault began when
she was three or four years old, and should have sought a curative jury instruction
on Elizabeth’s testimony.11 Sills contends that trial counsel was deficient for
asking him what might explain Elizabeth’s testimony, which led to Sills
volunteering to discuss what happened when Elizabeth was three, which opened
the door to the Tomah allegations and cross-examination by the State.

¶45 Although Sills argues that but for trial counsel’s performance failing
to limit testimony about the Tomah allegations, it was unlikely that a unanimous
jury would have convicted him, he fails to show there was a reasonable probability
of a different outcome. See Strickland, 466 U.S. at 694. Sills ignores that the jury
was shown Elizabeth’s recorded forensic interview which was thorough in
describing Sills’s abuse. Moreover, the record reflects that the video was far more
detailed than Elizabeth’s testimony about the Tomah allegations. Sills also
ignores that his own testimony opened the door to the State questioning him about
the Tomah allegations. Sills additionally ignores the impact of the recorded jail
call in which he blamed his daughter for these events. We conclude that Sills has
failed to make a showing of prejudice on his first claim.

¶46 For Sills’s second claim of ineffectiveness, he contends that trial
counsel was ineffective for failing to move the trial court to recuse itself after the
trial court’s remarks prior to the trial commencing, or at least before the
sentencing hearing. He argues that the trial court’s vocal frustration with the court

11
In its postconviction decision, the trial court stated that it would have denied an
objection to Elizabeth’s testimony about her father assaulting her at age three or four. We do not
consider the court’s postconviction decision dispositive to the issue.

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No. 2022AP1390-CR

of appeals put Sills’s right to a fair trial at risk and trial counsel should have
moved to counteract that.

¶47 Sills’s recusal claim offers only conclusory and speculative
allegations. As we discussed above, Sills fails to show that the trial court
exhibited objective or actual bias. Sills’s argument that counsel should have
moved for recusal before sentencing is similarly speculative. The sentence that
the trial court imposed was grounded in the facts evinced at trial, formed with the
factors required by WIS. STAT. § 973.017(2), and well within the maximum
sentences allowed by law. We conclude that Sills has failed to make a showing of
prejudice from trial counsel’s performance on his second claim.

¶48 Because we conclude that Sills has failed to satisfy the prejudice
prong in his postconviction claims, his claim for ineffective assistance of counsel
fails. See Johnson, 153 Wis. 2d at 128. Accordingly, the trial court acted within
its discretion when it denied his postconviction motion without a hearing. See
Ruffin, 401 Wis. 2d 619, ¶28.

CONCLUSION

¶49 For the reasons stated above, we conclude that Sills has failed to
show judicial bias or ineffective assistance of counsel. Therefore, we affirm the
judgment of conviction and the order denying his motion for postconviction relief.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

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