State v. Gina Quintella Johnson

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.
May 28, 2025
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. 2023AP1823-CR Cir. Ct. No. 2019CF3512

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

GINA QUINTELLA JOHNSON,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: STEPHANIE ROTHSTEIN and MARK A. SANDERS,
Judges. Affirmed.

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

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2023AP1823-CR

¶1 PER CURIAM. Gina Quintella Johnson pleaded guilty to one count
of homicide by negligent handling of a dangerous weapon and one count of
second-degree recklessly endangering safety in connection with the shooting death
of Markel Johnson.1 The circuit court2 imposed the maximum sentence for both
counts and ordered that the sentences be served consecutive to one another.
Johnson filed a postconviction motion requesting resentencing on two
grounds: (1) the circuit court erroneously exercised its sentencing discretion
because it did not adequately explain its reasons for imposing maximum,
consecutive sentences; and (2) trial counsel was constitutionally ineffective
because counsel recommended, without advising Johnson beforehand, a sentence
of probation to the circuit court based on the recommendation of a presentence
investigation report (“PSI”) that was independently commissioned by trial counsel,
only to subsequently characterize that recommendation as “absurd.” The
postconviction court denied Johnson’s motion without conducting a Machner3
hearing.

¶2 On appeal, Johnson renews her argument that the circuit court
erroneously exercised its sentencing discretion, and she argues that she was
entitled to a Machner hearing. We disagree and affirm.

1
For ease of reading and to avoid confusion with the defendant, we refer to Markel
Johnson as “Markel.”
2
The Honorable Stephanie Rothstein accepted Johnson’s guilty plea and sentenced
Johnson. We refer to Judge Rothstein as the circuit court. The Honorable Mark A. Sanders
considered and denied Johnson’s postconviction motion. We refer to Judge Sanders as the
postconviction court.
3
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2023AP1823-CR

BACKGROUND

¶3 According to the criminal complaint, on August 4, 2019, citizens
flagged down police on patrol near a bar in Milwaukee. When police arrived
outside the bar, Markel was laying on the ground in a pool of blood. The citizens
informed police that Markel had been shot. Life-saving measures were
unsuccessful, and an autopsy revealed that Markel had suffered a stab wound to
the left side of his chest and a gunshot wound to the right side of his mouth. The
death was ruled a homicide.

¶4 A confidential witness (“C.W.”) at the scene told police that they
were at a bar across the street from the homicide location when they observed
Johnson and Markel in an argument. Markel was “in [Johnson’s] face,” and C.W.
and other patrons tried to break them up. Later, C.W. saw Johnson and Markel
arguing by the bathroom, and C.W. told Markel that he should leave. C.W. then
observed that Johnson had an open knife in her hand. The bar workers told
Johnson and Markel that they both had to leave, and Johnson put the knife in her
purse. As Johnson and Markel were leaving the bar, Johnson made a comment to
Markel and approached Markel “in an aggressive manner.” Markel then said to
Johnson, “bitch you better back your ass up,” and, “bitch, you only get one swing
with that and then I’m gonna knock your ass out.”

¶5 Later, C.W. left the bar and saw Johnson and Markel outside
arguing. When a bar patron told them not to fight, Johnson told the patron to “shut
the fuck up, you ain’t got nothing to do with this, this is between me and him.”
Johnson and Markel then walked to Johnson’s vehicle across the street. C.W.
heard a yell and saw the two prepare to fight each other, while Johnson held her
knife. C.W. saw Johnson make a swinging/stabbing motion, which Markel

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No. 2023AP1823-CR

attempted to dodge. After this, Markel punched Johnson. C.W. attempted to
intervene, and at that point, Markel told C.W. that he had been stabbed. C.W.
turned around and saw Johnson reach into her vehicle’s storage compartment.
Johnson pulled out a handgun and stated, “this is what you want?” C.W. said that
they saw Johnson stand up on her “tippy toes” and fire two shots over the roof of
the vehicle. Johnson then got into the vehicle and drove away.

¶6 Johnson later turned herself in to police and admitted to stabbing and
shooting Markel. Johnson told police that Markel got aggressive and started
punching her, so she stabbed him. Johnson said that after the fight, she reached
down to pick up her phone, and she saw a firearm on the ground. Johnson claimed
that she just wanted Markel to leave, so she fired the handgun as a warning.

¶7 Johnson pleaded guilty to two charges in an amended
information: one count of homicide by negligent handling of a dangerous weapon
and one count of second-degree recklessly endangering safety. 4 Prior to
sentencing, Johnson filed an independently commissioned defense PSI. The
author of the PSI opined that “[p]rison is not necessary to protect the public from
further criminal activity[,]” and recommended that Johnson be “placed on
probation for a total of three years to include 12 months conditional jail time with
work-release if she can obtain employment or home confinement.”

4
Johnson was originally charged with one count of second-degree reckless homicide
while using a dangerous weapon. This count was amended to a charge of first-degree reckless
homicide while using a dangerous weapon, but pursuant to a plea agreement, the information was
amended again to one count of homicide by negligent handling of a dangerous weapon and one
count of second-degree recklessly endangering safety.

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No. 2023AP1823-CR

¶8 At the sentencing hearing, when trial counsel was discussing the
sentencing factor of deterrence, counsel stated that the PSI author acknowledged
in the report that the probation recommendation would likely be viewed as
“absurd,” but the author did not actually characterize the recommendation as
“absurd” in the PSI. Counsel stated that “perhaps [probation] is absurd but I don’t
think it is relative to [Johnson’s] character, relative to the facts and circumstances
and what is exhibited in the letters that were filed with the [c]ourt from the family
and in the PSI.” After highlighting that Johnson turned herself in and confessed,
which counsel described as “a very rare occurrence,” counsel asked the court to
“consider the defense recommendation, acknowledging that the punishment
[Johnson]’s going to suffer will be life-long.”

¶9 In imposing its sentence, and after classifying the severity of
Johnson’s crimes as “aggravated,” the circuit court criticized trial counsel for
submitting the defense-commissioned PSI recommending probation:

I will tell you, [counsel], it’s a defense decision to submit a
[PSI] like this to the [c]ourt. And perhaps in this case to
avoid having to characterize your own presentence, your
own submission, your own suggestion as “absurd,” you
might have been better off just leaving the recommendation
out[.]

The circuit court found that the PSI’s recommendation of probation undermined
the seriousness of the offense and was “unrealistic”:

It is the lawyers’ responsibility to be realistic with
your client and the [c]ourt. And, [counsel], this does not at
all reflect on your abilities, on your level of preparedness. I
understand what the goal was here and the goal was to
show the [c]ourt Miss Johnson’s character. However, the
[c]ourt will tell you right out that to put this defendant on
probation in this case would unduly depreciate the
seriousness of this offense. It is a recommendation that is,
in my book, totally unrealistic.

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No. 2023AP1823-CR

¶10 Counsel informed the court that Johnson was prepared to go to
prison and was aware of the probation recommendation, but counsel was “not
going to excise” the author’s sentencing recommendation from the PSI for fear
that doing so would be seen as “underhanded.” The circuit court stated that the
PSI author “has lost a degree of credibility with this [c]ourt by making the
recommendation that she made. It’s not a reflection on you, [counsel], certainly as
I hope I made clear. But it is your filing.”

¶11 The circuit court then recognized that Johnson accepted
responsibility, but that it “is a mixed bag because she didn’t turn in the firearm[,]”
stating that “[i]t is my nightmare that that firearm will resurface and God forbid it
becomes another murder gun.” After highlighting inconsistencies between
eyewitness testimony and Johnson’s statements to police, the court found that
Johnson exhibited disregard for human life:

She says “she does not handle firearms and was not sure
what to do. As she was moving the firearm to fire a
warning shot in the air, it discharged.”

This is the essence of disregard for human life.
Someone who admits that they don’t know how to handle a
gun picks up a gun and thinks they’re gonna shoot it in the
air just like in the movies. That is absurd. That is what
leads to people being killed. That’s what led to this
gentleman being murdered.

The circuit court found “it’s not a mitigating factor for somebody to come into
court and say: I didn’t know how to use a gun. So when it went off, I didn’t know
what to do.”

¶12 The circuit court determined that the community “does need to be
protected.” It found that the effect upon the community has “been large,” and that
“[e]very weekend we are confronted with shootings of innocent people by those

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No. 2023AP1823-CR

who fire guns recklessly on our streets.” Therefore, Johnson’s “behavior did cause
a significant risk to the community.” The circuit court additionally found that
“probation, as proposed by the expert submitted by the defense, is an unrealistic
recommendation in this matter[.]” The circuit court imposed the maximum
sentence for both counts and ordered that the sentences be served consecutively,
resulting in a combined sentence of ten years of initial confinement followed by
ten years of extended supervision.

¶13 Johnson moved for postconviction relief requesting resentencing
because: (1) the circuit court erroneously exercised its sentencing discretion
because it did not adequately explain its reasons for imposing maximum,
consecutive sentences; and (2) she was denied the effective assistance of counsel
because trial counsel recommended, and did not discuss with Johnson beforehand,
a sentence of probation to the court and later admitted that the recommendation
was “absurd.” The postconviction court denied Johnson’s motion. It determined
that the circuit court “did not erroneously exercise its discretion and appropriately
considered the relevant sentencing factors[.]” It added that “[t]he record plainly
shows that [the circuit court] gave conscientious consideration to all of the
relevant factors, and did so at some length.” Additionally, the postconviction
court concluded that Johnson was not prejudiced by trial counsel’s allegedly
deficient performance because, given the gravity of the offense and that “this was
simply not a mitigated homicide,” there is no reasonable probability that the
circuit court “would have imposed anything less than the maximum penalty.”

¶14 Johnson appeals.

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No. 2023AP1823-CR

DISCUSSION

I. The circuit court did not erroneously exercise its sentencing
discretion.

¶15 Johnson argues that the circuit court erroneously exercised its
sentencing discretion. Circuit courts retain considerable discretion at sentencing.
State v. Gallion, 2004 WI 42, ¶68, 270 Wis. 2d 535, 678 N.W.2d 197. “[W]e will
not disturb the exercise of the circuit court’s sentencing discretion so long as ‘it
appears from the record that the court applied the proper legal standards to the
facts before it, and through a process of reasoning, reached a result which a
reasonable judge could reach.’” State v. Cummings, 2014 WI 88, ¶75, 357
Wis. 2d 1, 850 N.W.2d 915 (quoting State v. Grindemann, 2002 WI App 106,
¶30, 255 Wis. 2d 632, 648 N.W.2d 507).

¶16 Specifically, Johnson claims that the circuit court erroneously
exercised its sentencing discretion because it did not adequately explain its reasons
for imposing maximum, consecutive sentences. We disagree.

¶17 “Circuit courts are required to specify the objectives of the sentence
on the record. These objectives include, but are not limited to, the protection of
the community, punishment of the defendant, rehabilitation of the defendant, and
deterrence to others.” Gallion, 270 Wis. 2d 535, ¶40; see also WIS. STAT.
§ 973.017(10m)(a) (2023-24) (“The court shall state the reasons for its sentencing
decision and ... shall do so in open court and on the record.”).5 There is an
established framework for discharging this duty:

5
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2023AP1823-CR

Courts are to identify the general objectives of
greatest importance. These may vary from case to case. In
some cases, punishment and protection of the community
may be the dominant objectives. In others, rehabilitation of
the defendant and victim restitution may be of greater
import. Still others may have deterrence or a restorative
justice approach as a primary objective.

Courts are to describe the facts relevant to these
objectives. Courts must explain, in light of the facts of the
case, why the particular component parts of the sentence
imposed advance the specified objectives.

Courts must also identify the factors that were
considered in arriving at the sentence and indicate how
those factors fit the objectives and influence the decision.

Gallion, 270 Wis. 2d 535, ¶¶41-43.

¶18 “In each case, the sentence imposed shall ‘call for the minimum
amount of custody or confinement which is consistent with the protection of the
public, the gravity of the offense and the rehabilitative needs of the defendant.’”6
Id., ¶44 (quoting McCleary v. State, 49 Wis. 2d 263, 276, 182 N.W.2d 512
(1971)). Importantly, however, the circuit court “must provide an explanation for
the general range of the sentence imposed, not for the precise number of years
chosen, and it need not explain why it did not impose a lesser sentence.” State v.
Davis, 2005 WI App 98, ¶26, 281 Wis. 2d 118, 698 N.W.2d 823.

¶19 First, we discuss the circuit court’s explanation for imposing
maximum sentences for both counts. We conclude that the circuit court

6
Probation is required to be considered “as the first alternative” unless “confinement is
necessary to protect the public, the offender needs correctional treatment available only in
confinement, or it would unduly depreciate the seriousness of the offense.” State v. Gallion,
2004 WI 42, ¶44, 270 Wis. 2d 535, 678 N.W.2d 197. Johnson does not challenge the adequacy
of the circuit court’s explanation for not imposing probation and instead imposing confinement.

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No. 2023AP1823-CR

adequately explained the general range of the sentence imposed.7 As set forth
above, the circuit court repeatedly emphasized the need to protect the community
from Johnson’s recklessness and to deter others, specifically observing that
although Johnson turned herself in, she did not turn in the firearm, and that the
community was regularly confronted with shootings of innocent people by those
who fire guns recklessly. The circuit court highlighted the multiple
inconsistencies between Johnson’s statements to police and those of other
witnesses. Moreover, the circuit court underscored just how reckless Johnson’s
explanation of the shooting really was: “Someone who admits that they don’t
know how to handle a gun picks up a gun and thinks they’re gonna shoot it in the
air just like in the movies. That is absurd. That is what leads to people being
killed.”

¶20 The circuit court also considered factors in Johnson’s favor,
including that she was a prosocial member of the community, was employed, and
appeared to be a responsible parent, but the circuit court ultimately found that
these considerations could not overshadow the gravity of the offense and the need
to both punish the defendant and protect the public. Johnson is simply unhappy
that the circuit court weighed certain factors more heavily against her while not
assigning enough weight to mitigating factors. See State v. Berggren, 2009 WI

7
Johnson argues that the circuit court did not explain the general range of the sentence
imposed because it did not indicate “that a short, medium, or long period of incarceration was
required.” Johnson also argues that the circuit court was required to state specifically why
maximum, consecutive sentences were the minimum amounts of confinement consistent with the
circuit court’s sentencing objectives. We reject these arguments. It is well settled that the
framework for explaining a sentence “is not intended to be a semantic trap for circuit courts,” nor
is it a requirement that “magic words” be used. Gallion, 270 Wis. 2d 535, ¶49. As we explain
throughout this opinion, the sentencing transcript demonstrates that the circuit court provided an
adequate explanation for the sentence imposed.

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No. 2023AP1823-CR

App 82, ¶46, 320 Wis. 2d 209, 769 N.W.2d 110; State v. Prineas, 2009 WI App
28, ¶34, 316 Wis. 2d 414, 766 N.W.2d 206. “[T]he circuit court has ‘wide
discretion in determining what factors are relevant’ and what weight to give to
each factor.” State v. Williams, 2018 WI 59, ¶47, 381 Wis. 2d 661, 912 N.W.2d
373 (quoting Gallion, 270 Wis. 2d 535, ¶68). We are satisfied that the circuit
court adequately explained why it imposed the maximum sentences for both
counts.

¶21 Second, we discuss the circuit court’s explanation for imposing
consecutive sentences. At the outset, we note that circuit courts are not required to
separately explain why they “chose a consecutive rather than a concurrent
sentence.” Berggren, 320 Wis. 2d 209, ¶45. Instead, courts must explain “the
relevant and material factors” that influenced the sentencing decision. Id. The
same factors considered in determining the length of a sentence are used to
determine whether sentences should be served concurrently or consecutively.
State v. Hall, 2002 WI App 108, ¶8, 255 Wis. 2d 662, 648 N.W.2d 41.

¶22 Here, the circuit court stated that it found that the “incidents are
sufficiently distinct to merit consecutive sentences.” We agree with the circuit
court’s assessment, and we conclude that the court adequately explained why it
imposed consecutive sentences. In addition to all of the details described above
concerning the gravity of the offense and the need to protect the public, the circuit
court emphasized the separate and distinct impacts on the community of both
Markel’s homicide (i.e., count one: homicide by negligent handling of a dangerous
weapon) and the dangers posed to innocent people by those who fire guns
recklessly (i.e., count two: second-degree recklessly endangering safety). “That
logic is unassailable under the facts of this case.” State v. Ziegler, 2006 WI App
49, ¶35, 289 Wis. 2d 594, 712 N.W.2d 76. These separate and distinct concerns

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No. 2023AP1823-CR

coupled with the circuit court’s thorough consideration of the Gallion factors
adequately explain the imposition of consecutive sentences.

¶23 Accordingly, we conclude that the circuit court did not erroneously
exercise its sentencing discretion.

II. Johnson is not entitled to a Machner hearing.

¶24 Johnson argues that she was denied the effective assistance of
counsel because trial counsel recommended, and did not discuss with Johnson
beforehand, a sentence of probation to the circuit court based upon counsel’s
independently commissioned PSI, and later admitted that the recommendation was
“absurd.” Johnson asserts that, had she been informed of trial counsel’s probation
recommendation, she would have instructed trial counsel to instead advocate for a
prison term between four and seven years. Had trial counsel recommended a
prison term within this range, Johnson says, there is a reasonable probability that
the circuit court would not have harbored the same negative attitudes towards the
defense and would not have imposed maximum, consecutive sentences for both
offenses. We disagree with Johnson, and instead, we agree with the
postconviction court that Johnson is not entitled to a Machner hearing on these
claims.

¶25 In rejecting Johnson’s ineffective assistance challenges without a
hearing, the postconviction court applied the two-pronged test for deficient
performance and prejudice established in Strickland v. Washington, 466 U.S. 668,
687 (1984). “When a circuit court summarily denies a postconviction motion
alleging ineffective assistance of counsel without holding a Machner hearing, the
issue for the court of appeals ... is whether the defendant’s motion alleged
sufficient facts entitling [the defendant] to a hearing.” State v. Sholar, 2018 WI

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No. 2023AP1823-CR

53, ¶51, 381 Wis. 2d 560, 912 N.W.2d 89. Even if the motion alleges specific
facts, “an evidentiary hearing is not mandatory if a defendant’s motion presents
only conclusory allegations or if the record as a whole conclusively demonstrates
that the defendant is not entitled to relief.” State v. Ruffin, 2022 WI 34, ¶38, 401
Wis. 2d 619, 974 N.W.2d 432.8

¶26 To establish deficient performance, the motion must specifically
allege more than that counsel’s performance was “imperfect or less than ideal.”
State v. Balliette, 2011 WI 79, ¶22, 336 Wis. 2d 358, 805 N.W.2d 334. There is a
strong presumption that counsel performed reasonably, and the question is
“whether the attorney’s performance was reasonably effective considering all the
circumstances.” Id., ¶¶22, 25-28.

¶27 The motion must also allege prejudice, i.e., “a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. In order to
satisfy this prong, the defendant must allege more than “that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693. “[R]ank
speculation” is insufficient. State v. Erickson, 227 Wis. 2d 758, 774, 596 N.W.2d
749 (1999).

8
The State asserts, without development, that Johnson was required to provide an
affidavit with her postconviction motion describing what her testimony would be if a Machner
hearing was held. We know of no such requirement, and the State provides no authority to
support it. “Arguments unsupported by references to legal authority will not be considered.”
State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633.

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No. 2023AP1823-CR

¶28 Whether a postconviction motion is sufficient on its face to require
an evidentiary hearing and whether the record conclusively demonstrates that the
defendant is not entitled to relief are both questions of law that we review
independently of the circuit court. Ruffin, 401 Wis. 2d 619, ¶27; Balliette, 336
Wis. 2d 358, ¶18. Furthermore, “a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at 697.

¶29 In this case, the record conclusively demonstrates that Johnson was
not prejudiced by trial counsel’s alleged deficiencies. There is no reasonable
probability that the circuit court would have imposed a lesser sentence or followed
a recommendation of four to seven years in prison. We agree with the
postconviction court that, although the circuit court was “clearly not impressed
with counsel’s recommendation of probation in a homicide case,” there is no
support for the conclusion that the circuit court “harbored any resentment against
[Johnson] for this, particularly in light of the fact that counsel clarified that
[Johnson] was ‘prepared to go to prison.’” We agree with the postconviction
court’s characterization of the circuit court’s comments “as constructive criticism
or judicial guidance,” and there is “no connection between defense counsel’s
performance and [the circuit court]’s decision to impose a maximum sentence.”
Moreover, criticism aside, the circuit court understood that trial counsel’s tactic
was to present favorable evidence of Johnson’s character in order to argue that
Johnson’s extraordinary character justified an extraordinarily lenient sentence.

¶30 As detailed above, the reasons why the circuit court imposed
maximum, consecutive sentences was thoroughly explained and supported by the
record. The circuit court repeatedly emphasized the need to protect the
community from Johnson’s recklessness and to deter others. It highlighted

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No. 2023AP1823-CR

multiple inconsistencies between Johnson’s statements to police and those of other
witnesses. It also considered factors in Johnson’s favor, but it ultimately found
that these considerations could not overshadow the gravity of the offense and the
need to both punish the defendant and protect the public. There is no indication
that the circuit court would have weighed the sentence factors any differently had
trial counsel instead recommended a four-to-seven-year prison sentence instead of
probation.

¶31 In our view, the record conclusively demonstrates that the circuit
court was convinced that the minimum amount of confinement necessary to
accomplish its stated sentencing objectives was the sentence it imposed. There is
no reasonable probability that the circuit court would have sentenced Johnson any
differently had trial counsel instead recommended a four-to-seven-year prison
term. Accordingly, Johnson was not entitled to a Machner hearing on her
ineffective assistance of counsel claims.

CONCLUSION

¶32 We conclude that the circuit court did not erroneously exercise its
sentencing discretion. It adequately explained the sentence imposed. We further
conclude that Johnson is not entitled to a Machner hearing on her ineffective
assistance of counsel claims. The record conclusively demonstrates that Johnson
was not prejudiced by trial counsel’s allegedly deficient performance.

By the Court.—Judgment and order affirmed.

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

15