State v. Chris Michael Shaughnessy

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 19, 2023
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. 2022AP110 Cir. Ct. No. 2016CF142

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHRIS MICHAEL SHAUGHNESSY,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for St. Croix County:
SCOTT J. NORDSTRAND, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Chris Shaughnessy appeals from an order denying
his postconviction motion for resentencing. Shaughnessy argues that the State
No. 2022AP110

breached the plea agreement during its sentencing argument and that the circuit
court1 relied on inaccurate information and improper factors when imposing his
sentence. Shaughnessy further asserts that his trial attorney was constitutionally
ineffective by failing to object to these alleged errors and by emphasizing negative
information about Shaughnessy during his sentencing argument. In addition,
Shaughnessy argues that the postconviction court erred by denying his
postconviction motion without holding a Machner2 hearing. We reject these
arguments and affirm.

BACKGROUND

¶2 The State charged Shaughnessy with one count of second-degree
sexual assault of a child and one count of sexual exploitation of a child. The
charges were based on allegations that forty-four-year-old Shaughnessy had
sexually assaulted fifteen-year-old Carly.3 Carly was a friend of Shaughnessy’s
daughter, had previously dated Shaughnessy’s son, and had lived in
Shaughnessy’s home for almost two years.

¶3 According to the amended complaint, in February 2016, a mandatory
reporter contacted law enforcement regarding Carly, who was being treated in a
Minnesota hospital for the use of controlled substances. The reporter told law

1
The Honorable Eric J. Lundell sentenced Shaughnessy. We refer to Judge Lundell as
the circuit court. The Honorable Scott J. Nordstrand denied Shaughnessy’s motion for
postconviction relief. We refer to Judge Nordstrand as the postconviction court.
2
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
3
Pursuant to the policy underlying WIS. STAT. RULE 809.86 (2021-22), we use a
pseudonym when referring to the victim in this case. All references to the Wisconsin Statutes are
to the 2021-22 version unless otherwise noted.

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enforcement that Carly “had been using methamphetamine and prescription
medication, allegedly provided to her by [Shaughnessy].” The reporter also stated
that Carly’s parents had accessed her Facebook Messenger log and had discovered
sexually explicit messages between Carly and Shaughnessy.

¶4 Carly’s mother subsequently told law enforcement that she believed
Shaughnessy had supplied Carly with methamphetamine. Carly’s mother also
provided copies of Facebook messages between Carly and Shaughnessy, in which
Shaughnessy stated he was “thinking about coming over and tearing up that
pussy.”

¶5 Investigators then executed a search warrant at Shaughnessy’s
residence and seized several items, including a cell phone and SD card. On the
phone, investigators found a video that showed Shaughnessy fondling Carly’s bare
breasts with one hand while his other hand was on his bare, erect penis.
Investigators also located additional Facebook messages on the phone, in which
Carly and Shaughnessy discussed Carly sneaking out of her mother’s home to
meet Shaughnessy. In another conversation, Shaughnessy told Carly to “tighten
up your cock washer” and then told her to “erase all of these messages NOW.”
Investigators also found a video that showed Carly and Shaughnessy embracing
and kissing on the lips. In addition, investigators recovered a pair of women’s
underwear, and DNA testing indicated that Shaughnessy “was the source of the
sperm fragments on the underwear and [Carly] was included as a possible
contributor to the non-sperm fragments.”

¶6 Shaughnessy’s trial attorney filed a motion to suppress evidence.
The motion alleged that law enforcement had searched the entirety of
Shaughnessy’s phone and SD card, including photo and video files, and that the

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general search exceeded the scope of the warrant. Shaughnessy therefore sought
suppression of all audio or visual media found on the phone and SD card.

¶7 After Shaughnessy filed his suppression motion, the parties reached
a plea agreement. Under the agreement, Shaughnessy agreed to withdraw his
suppression motion and plead guilty to second-degree sexual assault of a child. In
exchange, the sexual exploitation of a child charge would be dismissed and read
in, along with additional charges in two other cases. The plea agreement further
provided that the parties would jointly recommend a ten-year sentence, comprised
of five years’ initial confinement followed by five years’ extended supervision.

¶8 The circuit court accepted Shaughnessy’s guilty plea to
second-degree sexual assault of a child and found him guilty of that offense. The
court then ordered a presentence investigation report (PSI). The PSI author
recommended a thirteen-year sentence, comprised of nine years’ initial
confinement followed by four years’ extended supervision. At sentencing, both
the State and Shaughnessy asked the court to impose five years’ initial
confinement and five years’ extended supervision, consistent with the plea
agreement. The court exceeded the joint recommendation, however, and imposed
a twenty-five-year sentence, comprised of fifteen years’ initial confinement
followed by ten years’ extended supervision.

¶9 Shaughnessy filed a notice of intent to pursue postconviction relief.
Shaughnessy’s appointed postconviction attorney subsequently determined,
however, that there were no arguably meritorious appellate issues, and
Shaughnessy consented to counsel closing the file without filing a postconviction
motion or appeal.

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¶10 Shaughnessy later retained new counsel and filed a motion for
postconviction relief under WIS. STAT. § 974.06, seeking resentencing.
Shaughnessy alleged that: (1) the State breached the plea agreement at sentencing
by covertly arguing for a sentence that exceeded the parties’ joint
recommendation; (2) the circuit court relied on inaccurate information and
improper factors when imposing his sentence; (3) Shaughnessy’s trial attorney was
constitutionally ineffective by failing to object to the State’s breach of the plea
agreement, by “joining in the State’s arguments instead of defending against
them,” and by failing to object to the court’s reliance on inaccurate information
and improper factors; and (4) Shaughnessy’s appointed postconviction attorney
was ineffective by failing to file a postconviction motion raising these issues.

¶11 The postconviction court denied Shaughnessy’s motion for
resentencing, following a nonevidentiary hearing. First, the court concluded that
Shaughnessy had failed to show that the State breached the plea agreement during
its sentencing argument. Second, the court concluded that Shaughnessy had not
shown that there was inaccurate information before the circuit court at sentencing
or that the court actually relied on the allegedly inaccurate information. Third, the
court concluded that Shaughnessy had not met his burden to show that the circuit
court relied on any improper factors. Given these conclusions, the postconviction
court stated there was “no need to consider ineffective assistance of counsel.”

¶12 Shaughnessy now appeals from the order denying his postconviction
motion. Additional facts are included below as relevant to the parties’ arguments.

DISCUSSION

¶13 The parties agree that because Shaughnessy did not object at
sentencing to the State’s alleged breach of the plea agreement or to the circuit

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court’s alleged reliance on inaccurate information and improper factors, he cannot
raise those claims directly on appeal. Instead, Shaughnessy must show that his
trial attorney was constitutionally ineffective by failing to object to the alleged
errors. See State v. Erickson, 227 Wis. 2d 758, 766, 596 N.W.2d 749 (1999)
(stating the “normal procedure” in criminal cases is to address forfeited arguments
“within the rubric of the ineffective assistance of counsel”).

¶14 When reviewing an ineffective assistance of counsel claim, we will
uphold the circuit court’s findings of fact unless they are clearly erroneous. State
v. Nielsen, 2001 WI App 192, ¶14, 247 Wis. 2d 466, 634 N.W.2d 325. However,
whether the defendant’s proof is sufficient to establish ineffective assistance is a
question of law that we review independently. Id.

¶15 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). To
prove deficient performance, the defendant must point to specific acts or
omissions by counsel that are “outside the wide range of professionally competent
assistance.” Id. at 690. To demonstrate prejudice, the defendant must show “a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Id. at 694. If a defendant fails to
make a sufficient showing on one prong of the Strickland test, we need not
address the other. Id. at 697.

¶16 The circuit court rejected Shaughnessy’s ineffective assistance
claims without holding a Machner hearing. If a postconviction motion alleges
facts that, if true, would entitle the defendant to relief, then the circuit court must
hold an evidentiary hearing on the motion. State v. Bentley, 201 Wis. 2d 303,

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No. 2022AP110

309, 548 N.W.2d 50 (1996). The court may deny the motion without an
evidentiary hearing, however, if the motion “fails to allege sufficient facts … to
raise a question of fact, or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief.” Id. (citation
omitted).

I. Breach of the plea agreement

¶17 A criminal defendant has a due process right to the enforcement of a
negotiated plea agreement. State v. Williams, 2002 WI 1, ¶37, 249 Wis. 2d 492,
637 N.W.2d 733. A defendant who alleges that the State has breached a plea
agreement must show, by clear and convincing evidence, that a breach occurred
and that the breach was material and substantial. State v. Campbell,
2011 WI App 18, ¶7, 331 Wis. 2d 91, 794 N.W.2d 276 (2010). A breach is
material and substantial if it violates the terms of the plea agreement and defeats
the benefit for which the accused bargained. Williams, 249 Wis. 2d 492, ¶38. In
this case, because the facts relevant to the State’s alleged breach are undisputed,
whether the State’s conduct amounted to a material and substantial breach of the
plea agreement is a question of law that we review independently. See Campbell,
331 Wis. 2d 91, ¶7.

¶18 A prosecutor’s failure to present a negotiated sentence
recommendation to the circuit court constitutes a breach of the plea agreement.
Williams, 249 Wis. 2d 492, ¶38. In addition, “[w]hile a prosecutor need not
enthusiastically recommend a plea agreement, he or she ‘may not render less than
a neutral recitation of the terms of the plea agreement.’” Campbell, 331 Wis. 2d
91, ¶17 (citation omitted). Stated differently, “the State may not accomplish
through indirect means what it promised not to do directly, and it may not covertly

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convey to the [circuit] court that a more severe sentence is warranted than that
recommended.” State v. Hanson, 2000 WI App 10, ¶24, 232 Wis. 2d 291, 606
N.W.2d 278 (1999).

¶19 Nevertheless, the State may discuss negative facts about the
defendant during its sentencing remarks in order to justify a recommended
sentence within the plea agreement’s parameters. Campbell, 331 Wis. 2d 91, ¶17.
In fact, the State has a “duty to convey relevant information to the sentencing
court,” which the State must balance against its duty to honor the plea agreement.
Williams, 249 Wis. 2d 492, ¶44. The State must therefore walk a “fine line” at
sentencing when required by a plea agreement to make a specific sentence
recommendation. Id.

¶20 Shaughnessy contends that the prosecutor crossed this fine line
during his sentencing argument by making statements that “served to undercut the
plea agreement and covertly indicated that the agreed-upon recommendation was
too lenient.” Specifically, Shaughnessy notes that after reciting the parties’ joint
recommendation, the prosecutor stated that he had reviewed the PSI, which was

deeply disturbing, one of the most disturbing PSIs that I
have reviewed in my time prosecuting, for a couple of
reasons. I think what stood out the most, despite the fact
that the defendant pled guilty to the second[-]degree child
sexual assault in this case, he continually denied it to the
presentence investigator. And he despicably blamed much
of the allegations against him on his son. Those are two
things that I find very hard, very difficult to see past.

¶21 The prosecutor then noted that, despite Shaughnessy’s denials in the
PSI, “this wasn’t a case where the proof was lacking,” given the video footage that
showed Shaughnessy sexually assaulting Carly. In particular, the prosecutor noted
that during the video, the camera “pan[ned] back to [Shaughnessy’s] own face and

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you see the disturbing, disgusting, smirk on his face.” Under these circumstances,
the prosecutor stated that Shaughnessy’s “continued denials and his excuses are
disgusting.”

¶22 Throughout his sentencing remarks, the prosecutor also repeatedly
referred to this case as being “aggravated” and called Shaughnessy’s crime “very
grave.” The prosecutor specifically stated that “much of the aggravated nature of
this offense goes directly to the character of the defendant. These are terrible
things that he’s done. The way that he’s used other people for his own pleasure is
a terrible thing.” The prosecutor also stated that there were “disturbing” things in
the PSI “about how [Shaughnessy] views himself as a father,” emphasizing that
Shaughnessy knew that his daughter was using marijuana but did nothing to
intervene. In addition, the prosecutor emphasized that Shaughnessy had blamed
his son for “hooking [Carly] on methamphetamine” and for sending Carly vulgar
messages from Shaughnessy’s Facebook account. The prosecutor further noted
that Shaughnessy had “a very serious criminal history dating back many years”
and stated that there were not “very many redeeming things about [Shaughnessy’s]
character that can be seen from the evidence that’s been presented in the form of
the PSI.”

¶23 Finally, the prosecutor emphasized that there were “very serious
concerns” regarding the protection of the public because Shaughnessy’s failure to
accept responsibility “makes him a further risk to commit other offenses in the
future.” The prosecutor also asserted that Shaughnessy’s poor performance while
released on bond

shows he is a very serious danger to the public. His
lengthy criminal history, it shows that he is a danger to the
public. And this very crime here is one of the most serious

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types of crimes that a person can commit, one of the most
horrendous types of crimes that a person can commit.

¶24 Shaughnessy argues these comments show that the prosecutor
“reconsidered the recommendation that he agreed to make after reviewing the PSI
report.” According to Shaughnessy, the prosecutor’s “vilification of …
Shaughnessy served no purpose other than to portray [him] as an unrepentant
monster and convey to the sentencing court that the recommended sentence was
woefully inadequate punishment for someone like him.” We disagree.
Shaughnessy has not shown, by clear and convincing evidence, that the comments
cited above constituted a material and substantial breach of the plea agreement,
when considered in the context of the prosecutor’s entire sentencing argument.

¶25 Notably, the prosecutor began his sentencing argument by reciting
the joint recommendation and explaining why he believed that recommendation
was appropriate. First, the prosecutor noted that, as a result of the plea agreement
containing the joint recommendation, Shaughnessy had agreed to withdraw his
suppression motion challenging the search of his cell phone and SD card. The
prosecutor explained that the suppression motion presented an issue of law that
was “unsettled” and that, “by reaching this resolution[,] we are having some
clarity about what will happen, … a known outcome here.” Second, the
prosecutor emphasized that the joint recommendation of five years’ initial
confinement meant that Carly would reach the age of twenty-one before
Shaughnessy was released from prison, which would give her “some period of
time acclimating herself to adulthood” before his release. Third, the prosecutor
noted that at the time the parties entered into the plea agreement, Carly did not
want to testify at trial, and the agreement obviated the need for her to do so.

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¶26 Only after explaining the rationale for the plea agreement and joint
recommendation did the prosecutor make the comments that Shaughnessy now
contends breached the plea agreement. We agree with the State, however, that in
making his sentencing argument, the prosecutor needed to acknowledge the
negative facts of the case, including the aggravated facts set forth in the PSI, to
avoid losing credibility with the circuit court. As the State aptly notes, “It was not
feasible to simply ignore the elephant in the room.” Moreover, and importantly,
the prosecutor concluded his sentencing argument by stating:

Again, your Honor, I am asking that the Court follow the
joint recommendation that we have here today. This is one
that Counsel spent a great deal of time crafting and for very
good reasons. The defendant did give up his right to
challenge the evidence in this case and he should be given
some consideration for that in the form of this
recommendation that we have.

So, your Honor, I am asking that the Court sentence the
defendant to the Wisconsin State Prison System for a
period of five years or ten years, five years of initial
confinement followed by five years of extended
supervision.

¶27 Thus, while the prosecutor discussed negative information about
Shaughnessy during his sentencing argument, he both began and ended his
remarks by reciting the agreed-upon joint recommendation. The prosecutor also
explained why, despite the aggravated facts, the joint recommendation of five
years’ initial confinement and five years’ extended supervision was appropriate.
Under these circumstances, Shaughnessy has not shown that the prosecutor’s
remarks constituted a material and substantial breach of the plea agreement. As
such, Shaughnessy’s trial attorney did not perform deficiently by failing to object
to the State’s alleged breach. See State v. Berggren, 2009 WI App 82, ¶21, 320
Wis. 2d 209, 769 N.W.2d 110 (counsel does not perform deficiently by failing to

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raise a legal challenge that would have been properly denied). Furthermore,
because the record conclusively shows that Shaughnessy is not entitled to relief,
the postconviction court properly rejected this claim without a Machner hearing.
See Bentley, 201 Wis. 2d at 309.

II. Inaccurate information

¶28 Shaughnessy next argues that the circuit court erred by relying on
inaccurate information at sentencing. “A defendant has a constitutionally
protected due process right to be sentenced upon accurate information.” State v.
Tiepelman, 2006 WI 66, ¶9, 291 Wis. 2d 179, 717 N.W.2d 1. To prevail on a
claim for resentencing based on inaccurate information, a defendant must show,
by clear and convincing evidence, that: (1) there was inaccurate information
before the court at sentencing, and (2) the court actually relied on the inaccurate
information when imposing the defendant’s sentence. State v. Coffee, 2020 WI 1,
¶38, 389 Wis. 2d 627, 937 N.W.2d 579.

¶29 Shaughnessy first contends that, when imposing his sentence, the
circuit court relied on an inaccurate belief that he had provided Carly with
methamphetamine in exchange for sex. Shaughnessy notes that, during the
sentencing hearing, he expressly denied having sexual intercourse with Carly or
trading her methamphetamine for sex. He further asserts that there was no other
evidence in the record to support the court’s belief that he had done so.

¶30 Shaughnessy has failed to show, by clear and convincing evidence,
that the circuit court’s statement about him giving Carly methamphetamine in
exchange for sex was inaccurate. There was evidence in the record to support the
court’s inference in that regard. First, while Shaughnessy denies that he ever had
sexual intercourse with Carly, the record would permit a contrary conclusion. As

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discussed above, the amended complaint recounted Facebook messages in which
Shaughnessy told Carly that he was “thinking about coming over and tearing up
that pussy” and instructed her to “tighten up your cock washer,” as well as
messages about Carly sneaking out of her mother’s home to meet Shaughnessy. In
addition, the PSI recounted that law enforcement had recovered a pair of
underwear bearing both Shaughnessy’s sperm and other DNA for which Carly was
included as a possible contributor. This evidence—in addition to the video
showing Shaughnessy fondling Carly’s bare breasts—would permit a reasonable
inference that Shaughnessy had sexual intercourse with Carly, despite his denial.

¶31 Additionally, the amended complaint alleged that a mandatory
reporter told investigators that Carly “had been using methamphetamine and
prescription medication, allegedly provided to her by [Shaughnessy].” The
amended complaint also stated that Carly’s mother told police that she believed
Shaughnessy had supplied Carly with methamphetamine. Carly’s mother later
told the PSI author that Carly “will have sex with anyone in exchange for meth.”
Taken together, this evidence supported a reasonable inference that Shaughnessy
supplied Carly with methamphetamine in exchange for sex. On this record,
Shaughnessy has not shown by clear and convincing evidence that the circuit
court’s statement to that effect was “extensively and materially false.” See State v.
Travis, 2013 WI 38, ¶18, 347 Wis. 2d 142, 832 N.W.2d 491.

¶32 Shaughnessy next asserts that the circuit court relied on an
inaccurate belief that he was a sexual deviant with no possibility of rehabilitation.
During its sentencing remarks, the court stated: “I think you have a defect in your
character that allows you to have weird sex, kinky sex, prostitute sex, all of those
things. That’s—that will stay with you. Even if you agreed to be castrated your
brain still has it up there. You would still try.”

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¶33 We agree with the State that the circuit court’s comments regarding
“kinky sex” and castration were “inartful,” and we do not condone them.
Nevertheless, we also agree with the State that Shaughnessy has not met his
burden to show that there was inaccurate information before the court regarding
his sexual deviancy or the prospect of rehabilitation. Notably, the court never
actually said that Shaughnessy was a sexual deviant, nor did it state that
Shaughnessy had no possibility of rehabilitation. While the court stated that
Shaughnessy had a “defect in [his] character” related to sexual behavior that
would “stay with [him],” that comment was not tantamount to a statement that
Shaughnessy would necessarily be unable to conform his conduct to the law in the
future, regardless of any treatment that he received. Furthermore, while
Shaughnessy emphasizes that the court ordered a sexual deviancy evaluation as a
condition of his extended supervision, that condition merely shows that the court
believed Shaughnessy should be evaluated for sexual deviancy, not that the court
had already concluded he was a sexual deviant.

¶34 Relatedly, Shaughnessy asserts the circuit court’s statement that he
“[has] weird sex, kinky sex, prostitute sex” was inaccurate. He contends that the
court “did not provide a definition for its subjective opinion on what constitutes
‘kinky’ or ‘weird’ sex” and that there is “nothing in the record … that would
indicate he patronizes prostitutes as the court alleged.”

¶35 As to Shaughnessy’s first assertion, the circuit court could
reasonably conclude that forty-four-year-old Shaughnessy’s sexual conduct with a
fifteen-year-old friend of his daughter and ex-girlfriend of his son—some of which
conduct Shaughnessy video recorded—was evidence that he had engaged in
“kinky” or “weird” sex. Shaughnessy’s admission to the PSI author that he was

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“involved in threesomes twice and engag[ed] in internet sex on three occasions”
further supported the court’s conclusion.

¶36 As to Shaughnessy’s second assertion, Shaughnessy is correct that
there is no evidence in the record indicating that he patronizes prostitutes.
However, even assuming that the circuit court’s statement in that regard was
inaccurate, Shaughnessy has not shown by clear and convincing evidence that the
court gave “explicit attention” or “specific consideration” to the inaccurate
information, such that it “formed part of the basis for the sentence.” See
Tiepelman, 291 Wis. 2d 179, ¶14. The court’s single comment regarding
Shaughnessy patronizing prostitutes cannot be said to have formed part of the
basis for Shaughnessy’s sentence when considered within the larger context of the
court’s sentencing remarks.

¶37 We therefore reject both of Shaughnessy’s inaccurate information
claims. Because Shaughnessy’s inaccurate information claims fail on their merits,
his trial attorney did not perform deficiently by failing to object. See Berggren,
320 Wis. 2d 209, ¶21. In addition, because the record conclusively shows that
Shaughnessy is not entitled to relief, the postconviction court did not err by
denying Shaughnessy’s ineffective assistance claim on these grounds without a
Machner hearing. See Bentley, 201 Wis. 2d at 309.

III. Improper factors

¶38 Next, Shaughnessy argues that the circuit court impermissibly relied
on two improper factors when imposing his sentence. “A circuit court erroneously
exercises its sentencing discretion when it ‘actually relies on clearly irrelevant or
improper factors.’” State v. Alexander, 2015 WI 6, ¶17, 360 Wis. 2d 292, 858
N.W.2d 662 (citation omitted). Examples of improper factors include a

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defendant’s race, national origin, gender, and religion. Id., ¶23. A defendant
bears the burden of proving, by clear and convincing evidence, that the court
actually relied on an improper factor. Id., ¶17.

¶39 “To prove ‘actual reliance’ on an improper factor, a defendant must
show that the circuit court made the improper factor a part of the ‘basis for the
sentence.’” State v. Whitaker, 2022 WI 54, ¶13, 402 Wis. 2d 735, 976 N.W.2d
304 (citation omitted). Stated differently, the defendant must show that the court
imposed a harsher sentence solely because of the improper factor. Id. “[I]f a
circuit court’s reference to a challenged factor bears ‘a reasonable nexus’ to a
proper sentencing factor, then the circuit court has not imposed sentence based
‘solely’ on the improper factor.” Id. (citation omitted).

¶40 Shaughnessy first argues that the circuit court improperly sentenced
him based on his gender. After announcing Shaughnessy’s sentence, the court
explained: “This particular sentence coincides with you getting out when you are
60 years old. You being supervised until you are 70 years old. By then lots of
things aren’t going to work.” Shaughnessy asserts the “obvious implication” of
this statement was that he “would be too old to be able to get an erection by the
time he was released from prison.” Shaughnessy therefore contends that the court
improperly sentenced him based on his gender because, if he were female, there
“would not be any need to impose a prison sentence long enough to ensure his
penis no longer worked by the time he was released.”

¶41 Shaughnessy has failed to show, by clear and convincing evidence,
that the circuit court actually relied on his gender when imposing his sentence. As
an initial matter, we are not convinced that the court’s challenged comment was
actually a reference to Shaughnessy’s gender. Rather than referring to

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Shaughnessy’s ability to have an erection, the court could have been commenting
on Shaughnessy’s decreased ability to manipulate young girls by the time he
reached age seventy—a consideration unrelated to his gender. Even assuming that
the challenged comment was a reference to Shaughnessy’s gender, however,
Shaughnessy cannot show that the court actually relied on an improper factor
because the comment bore a “reasonable nexus” to a proper sentencing factor. See
id. (citation omitted).

¶42 Our supreme court’s decision in Whitaker is instructive. There,
when imposing sentence in a sexual assault case, the circuit court repeatedly
referenced Whitaker’s childhood Amish community and stated its intent to deter
others within that community from failing to report or stop ongoing sexual
assaults. Id., ¶14. On appeal, our supreme court assumed, without deciding, that
these references to Whitaker’s childhood Amish community were improper. Id.
The court concluded, however, that Whitaker had failed to show that the assumed
improper factor “was the sole cause of a harsher sentence because it [bore] a
reasonable nexus to relevant and proper sentencing factors.” Id. Specifically, the
court concluded that the circuit court’s comments urging members of Whitaker’s
childhood Amish community to report or stop sexual assaults were related to the
valid sentencing factors of general deterrence and protection of the public. Id.,
¶¶15-18.

¶43 Here, the circuit court’s alleged reference to Shaughnessy’s gender
bore a reasonable nexus to a proper sentencing factor—namely, protection of the
public. The court could consider the fact that Shaughnessy had sexually assaulted
a child and could further reasonably infer that he had used his penis to do so. In
drawing that inference, the court could specifically consider the video that showed
Shaughnessy touching his erect penis while fondling Carly’s breasts. Under these

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circumstances, the court essentially decided that, in order to protect the public,
Shaughnessy needed to be incarcerated or supervised until he became too old to be
likely to victimize anyone else. As in Whitaker, there was a reasonable nexus
between the improper factor—Shaughnessy’s gender—and a proper sentencing
factor—protection of the public. As such, Shaughnessy has failed to show by
clear and convincing evidence that the court actually relied on an improper factor.

¶44 Next, Shaughnessy argues that the circuit court impermissibly
imposed a lengthier sentence based on his “physical appearance and attractiveness
to teenage girls.” During its sentencing remarks, the court stated:

Now, my goal here is to make sure that you are old enough
where a 15 year old, 16, 17 year old girl, would find you
terribly unattractive and would never even think of
allowing them to be groomed by you. And how do you
accomplish that? By you getting older in prison. So that’s
the goal here.

Shaughnessy contends that a defendant’s physical appearance “is not an
appropriate factor for the court to rely on in imposing sentence” and that “[a]n
attractive defendant should not receive a lengthier sentence than an unattractive
defendant.”

¶45 This argument fails for two reasons. First, Shaughnessy cites no
legal authority in support of the proposition that a defendant’s physical
attractiveness is an improper factor for consideration at sentencing. We need not
consider arguments that are unsupported by references to legal authority. See
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

¶46 Second, the circuit court never stated that it believed Shaughnessy
was physically attractive and that it was imposing a lengthier sentence for that
reason. Instead, the court reasonably inferred that—whatever Shaughnessy’s

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No. 2022AP110

current level of physical attractiveness—as he aged, he would become less
physically attractive to teenage girls and would therefore be less capable of
manipulating them and grooming them for sexual assault. Thus, to the extent the
court considered Shaughnessy’s physical attractiveness, that factor bore a
reasonable nexus to a proper sentencing factor—i.e., protection of the public. See
Whitaker, 402 Wis. 2d 735, ¶13. Accordingly, even if a defendant’s physical
attractiveness is an improper factor, Shaughnessy has failed to demonstrate that
the court actually relied on that factor when imposing his sentence.4

¶47 Because Shaughnessy has failed to show that the circuit court
actually relied on any improper factors at sentencing, his trial attorney did not
perform deficiently by failing to object. See Berggren, 320 Wis. 2d 209, ¶21.
Furthermore, the postconviction court properly denied Shaughnessy’s ineffective
assistance claim on these grounds without a Machner hearing, as the record
conclusively shows that Shaughnessy is not entitled to relief. See Bentley, 201
Wis. 2d at 309.

IV. Trial counsel’s sentencing argument

¶48 Finally, Shaughnessy argues that his trial attorney was
constitutionally ineffective at sentencing by “agreeing with the State’s
objectionable statements and making objectionable statements of his own,
particularly regarding the PSI and its negative assertions.” Among other things,

4
In a related argument, Shaughnessy asserts that his “physical attractiveness to
[fifteen-to-seventeen]-year-old girls would also not have been a significant factor had he been
female.” Shaughnessy provides no support for this assertion and does not further develop his
argument in this regard. “We may decline to review issues [that are] inadequately briefed.” State
v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).

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No. 2022AP110

Shaughnessy’s trial attorney: (1) described the prosecutor’s summary of the case
as “accurate, if not somewhat troubling”; (2) discussed the “aggravating” fact that
Shaughnessy was a “father figure” for Carly; (3) stated that counsel had seen
“worse … scores” on the COMPAS risk assessment, but “not many”;
(4) emphasized Shaughnessy’s “troubling” scores on the “substance abuse” and
“criminal associates” portions of the COMPAS assessment; (5) stated that counsel
had only seen “a couple” PSIs worse than Shaughnessy’s; and (6) stated that
Shaughnessy “still struggles with accepting what he’s done.”

¶49 Shaughnessy contends that his trial counsel’s “harsh statements
against his client’s own interests” and “agreement with the worst aspects of the
prosecutor’s statements” were “inexcusable.” He contends that none of the
statements identified above “served to advance or protect [Shaughnessy’s]
interests in any way. They were purely harmful.”

¶50 We conclude that the postconviction court properly denied this
ineffective assistance claim without a Machner hearing because the record
conclusively shows that Shaughnessy is not entitled to relief. Specifically,
Shaughnessy cannot establish that his trial attorney’s remarks constituted deficient
performance.

¶51 Shaughnessy asserts that his trial attorney should have “disput[ed],
clarif[ied], explain[ed], or even ignor[ed]” the prosecutor’s negative comments
about Shaughnessy and the aggravated facts set forth in the PSI, rather than
“[a]greeing with (and highlighting)” those negative characterizations. As the State
aptly notes, however, the circuit court had read the PSI and “already [knew]” that
“the facts were bad.” We agree with the State that, under these circumstances,
“[i]gnoring the facts or making excuses for them would not have helped.”

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No. 2022AP110

¶52 In any event, Shaughnessy’s trial attorney did try to explain and
contextualize the aggravated facts of the case. In particular, trial counsel argued
that there are essentially “two Chris Shaughnessys”—the “hard[-]working, caring,
family man Chris Shaughnessy” and the “troubled, drug[-]addicted, criminal Chris
Shaughnessy.” Trial counsel emphasized that Shaughnessy’s criminal behavior
and failure to accept responsibility were the result of his struggles with
methamphetamine, but when sober, Shaughnessy “is remorseful and regrets what
happened.” Trial counsel also emphasized that Shaughnessy had been sober for
eight months. In addition, trial counsel noted that Shaughnessy had been placed
on probation in the past and had never been revoked, which was a “bright spot in
the PSI.” Finally, while trial counsel joined in the State’s recommendation for
five years’ initial confinement followed by five years’ extended supervision, he
also argued that a longer sentence could have negative ramifications, as keeping a
person incarcerated for too long can negatively affect his or her ability to function
outside of prison.

¶53 Ultimately, we agree with the State that Shaughnessy’s trial attorney
“did the best he could given the terrible facts Shaughnessy gave him to work
with.” Trial counsel did not perform deficiently by acknowledging the negative
facts about Shaughnessy and his crime but then arguing, for several reasons, that
the parties’ joint sentence recommendation was nevertheless appropriate. Because
the record conclusively demonstrates that Shaughnessy is not entitled to relief, the
postconviction court did not err by rejecting this ineffective assistance claim
without a Machner hearing. See Bentley, 201 Wis. 2d at 309.

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No. 2022AP110

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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