State v. Keith A. Talley

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 30, 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. 2024AP830-CR Cir. Ct. No. 2011CF38

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

KEITH A. TALLEY,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Adams County: PAUL S. CURRAN, Judge. Affirmed.

Before Kloppenburg, P.J., Graham, and Nashold, JJ.

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

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2024AP830-CR

¶1 PER CURIAM. In this appeal, Keith A. Talley challenges the
circuit court’s order denying his postconviction motion seeking modification of
the sentence that the court imposed after revocation of probation, based on the
existence of two new factors. Talley argues that the substance of the transcript of
the original sentencing hearing in 2014, which was not available at the time of the
2022 sentencing after revocation, as well as a psychosexual report completed after
the 2022 sentencing after revocation and the testimony of its author, constitute
new factors that warrant sentence modification. Talley requests that this court
reverse the order denying his motion and remand to the circuit court to exercise its
discretion to modify the sentence based on the new factors.1

¶2 We conclude that neither the substance of the sentencing transcript
nor the psychosexual report and testimony constitute a new factor, and,
accordingly, we affirm.

BACKGROUND

¶3 In 2011, the State charged Talley with two counts of second-degree
sexual assault, contrary to WIS. STAT. § 940.225(2)(c) (2023-24).2 The
information alleged that, in 2007, Talley had sexual contact “with a person who

1
The Honorable Charles Pollex presided over Talley’s original sentencing in 2014, and
the Honorable Paul S. Curran presided over Talley’s sentencing after revocation in 2022 and
ruled on Talley’s sentence modification motion in 2024. For ease of reference, we refer to Judge
Pollex as “the sentencing court” and to Judge Curran as “the circuit court.”
2
The State originally charged Talley with one count of second-degree sexual assault and
one count of making a visual representation of nudity, but the second count was later amended to
another count of second-degree sexual assault.

All references to the Wisconsin Statutes are to the 2023-24 version, because the relevant
statutes in effect at the time of Talley’s offenses have not changed.

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No. 2024AP830-CR

suffers from a mental illness or deficiency which renders that person … incapable
of appraising the person’s conduct.” See § 940.225(2)(c).

¶4 In early 2013, Talley was found not competent to stand trial and,
pursuant to a court order, was admitted to Winnebago Mental Health Institute for
competency restoration. In November 2013, a staff psychiatrist noted that Talley
was in the “borderline range of intellectual functioning,” but opined that Talley
had regained his competence to proceed to trial.

¶5 In 2014, pursuant to a plea agreement, Talley entered a plea of no
contest to one count of second-degree sexual assault of a person who suffers from
a mental deficiency, with the second count dismissed and read in. The sentencing
court withheld sentence and placed Talley on probation for a period of ten years.
In June 2022, Talley’s probation was revoked for violations of his probation
conditions. In July 2022, after a hearing, the circuit court sentenced Talley after
revocation to ten years of initial confinement followed by five years of extended
supervision.

¶6 In February 2024, Talley filed a motion for postconviction relief
seeking modification of the sentence after revocation pursuant to WIS. STAT.
RULE 809.30(2)(h), based on the existence of two new factors: the substance of the
newly available transcript of the original 2014 sentencing hearing, and a January
2024 psychosexual report and expert testimony by the report’s author.3 In March
2024, the circuit court held a hearing on the motion and entered an order denying
it, concluding that Talley had not demonstrated the existence of a new factor.

3
Talley also sought a correction of the judgment of conviction to reflect additional
sentence credit. This credit was granted and is not at issue on appeal.

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No. 2024AP830-CR

¶7 Talley appeals.

DISCUSSION

¶8 Talley renews the arguments presented in his postconviction motion,
namely, that he is entitled to sentence modification based on two new factors:
(1) new or previously overlooked information in the transcript of Talley’s original
sentencing hearing in 2014, which was not made part of the record before
sentencing after revocation in 2022; and (2) new information or the correction of
misinformation regarding Talley’s risk to reoffend as explained in the 2024
psychosexual report and the author’s testimony.

¶9 Circuit courts have inherent authority to modify criminal sentences
when a defendant has demonstrated the existence of a “new factor.” State v.
Schueller, 2024 WI App 40, ¶26, 413 Wis. 2d 59, 10 N.W.3d 423. A new factor
is “‘a fact or set of facts highly relevant to the imposition of sentence, but not
known to the [circuit court] at the time of original sentencing, either because it
was not then in existence or because, even though it was then in existence, it was
unknowingly overlooked by all of the parties.’”4 State v. Harbor, 2011 WI 28,
¶40, 333 Wis. 2d 53, 797 N.W.2d 828 (quoting Rosado v. State, 70 Wis. 2d 280,
288, 234 N.W.2d 69 (1975)).

¶10 Deciding a sentence modification motion based on a new factor is a
two-step inquiry. Harbor, 333 Wis. 2d 53, ¶36. First, the defendant must

4
While the definition of a “new factor” refers to facts not known at the “original
sentencing,” the parties do not argue, and our research does not disclose, any reason that a
sentencing after revocation should be treated differently. Accordingly, we proceed with the
understanding that the “original sentencing” at issue here is the sentencing after revocation.

4
No. 2024AP830-CR

demonstrate the existence of a new factor by clear and convincing evidence. Id.
We review this determination de novo. Id., ¶33. To meet this burden, the
defendant must show both that the fact or facts are “new,” that is, that they were
not known to the circuit court at the time of sentencing, and that the fact or facts
are “highly relevant to the sentence imposed.” Schueller, 413 Wis. 2d 59, ¶29.
“Erroneous or inaccurate information used at sentencing may constitute a ‘new
factor’ if it was highly relevant to the imposed sentence and was relied upon by
the [circuit] court.” State v. Norton, 2001 WI App 245, ¶9, 248 Wis. 2d 162, 635
N.W.2d 656.

¶11 Second, if the defendant demonstrates the existence of one or more
new factors, the circuit court must exercise its discretion to determine whether that
new factor justifies modification of the sentence. Harbor, 333 Wis. 2d 53, ¶37.
An appellate court reviews this determination for an erroneous exercise of
discretion. Id., ¶33.

¶12 As we explain, we conclude that Talley has not established the
existence of a new factor. Accordingly, we do not reach the second step of the
new factor analysis. See id., ¶38 (“[I]f a court determines that the facts do not
constitute a new factor as a matter of law, … it need not determine whether, in the
exercise of [] discretion, the sentence should be modified.”). We first present
additional background and then address the new factors asserted by Talley in turn.

A. Additional Background

¶13 We relate in detail aspects of the original sentencing, sentencing
after revocation, and postconviction motion proceedings because they are pertinent
to our analysis of whether Talley has established that the substance of the original

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No. 2024AP830-CR

2014 sentencing transcript and the 2024 psychosexual report and testimony are
new factors.

1. Original 2014 sentencing

¶14 We begin with the original sentencing proceeding and relate
pertinent details based on the transcript of that proceeding. As noted above, this
transcript was not available at the 2022 sentencing after revocation but was
subsequently prepared and used to support Talley’s 2024 postconviction motion.

¶15 In their remarks at the sentencing hearing, counsel for both Talley
and the State emphasized Talley’s cognitive challenges. Talley’s counsel told the
sentencing court, “We really had two people here[, the victim and Talley,] who
were low functioning.” The prosecutor said that Talley “has, as we know, mental
deficiencies. And they’re outlined in the reports from the doctor. I think a great
deal can be gleaned from the fact that [Talley] has served 267 days on an
incompetency commitment….” At least in part because of Talley’s cognitive
challenges, the State recommended a withheld sentence, with ten years of
probation.

¶16 In its sentencing remarks, the sentencing court first considered the
gravity of the offenses, noting that the offenses with which Talley was charged
were “gravely serious.” Addressing Talley, the court went on to acknowledge “the
evidence in the record … that you … have some challenges mentally and
intellectually,” but explained that “the pattern of behavior here is something which
should be of concern to all of us.” The court next considered protection of the
public, noting that there were two ways of achieving this: confining Talley to jail
or prison, or placing him on probation, “where you would have a supervising
probation agent who would guide you, hopefully assist you in avoiding further

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No. 2024AP830-CR

criminal conduct.” The court continued: “[Y]ou’re being given the benefit of the
doubt. You’re being sentenced to the least restrictive alternative as far as
protecting the public from further violations.” In conclusion, the court explained,
“[T]he goals are to firstly protect the public. Secondly, to provide you with
supervision, guidance that will hopefully enable you to make more proper choices
in the future, and to impose a penalty which adequately reflects the seriousness of
these charges.” Consistent with the State’s recommendation, the court withheld
sentence and placed Talley on probation for a period of ten years.

2. 2022 sentencing after revocation

¶17 In June 2022, Talley’s probation was revoked for violations of his
probation conditions. The revocation summary, prepared by Talley’s probation
agent for the circuit court’s consideration at the sentencing-after-revocation
hearing, listed two specific violations as the basis for the revocation: “fail[ure] to
comply with Sex Offender Treatment rules and expectations, resulting in
[Talley’s] termination from treatment”; and “intentional contact and
conversations, in person, with minor females, on more than one occasion, telling
the minor females that they were pretty and [that he] would like to date them.”
The summary also listed a number of other violations that had resulted in
warnings, holds, and other sanctions short of revocation.

¶18 In addition to the violations, the revocation summary also referred to
risk assessments completed by Talley’s probation agent in 2014 and sex offender
treatment provider in 2020. Specifically, the summary noted that, in 2020, Talley
scored a Level III – Average Risk on the Static-99R, an actuarial risk assessment
of a sex offender’s risk of recidivism based on static factors, but that he was
supervised at a higher level due to his dynamic and acute risk factors. These

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No. 2024AP830-CR

dynamic and acute risk factors included supervision and treatment noncompliance,
sexual deviance, sexual preoccupation, lack of emotional coping ability,
impulsivity, mental health, and victim access. Talley’s sex offender treatment
provider opined that Talley was “in his assault cycle,” and his probation agent
opined that Talley was currently in “his offense cycle.” The summary also
mentioned an attempt to access adaptive sex offender treatment “for lower
functioning individuals” and noted that Talley’s “learning disability” and
difficulty maintaining attention interfered with some participation in treatment.
For all of these reasons, the summary concluded that “intensive sex offender
treatment is needed in a confined setting.” The Department of Corrections
(Department) recommended that Talley be sentenced to five to six years of initial
confinement followed by three to four years of extended supervision.

¶19 At the sentencing-after-revocation hearing in July 2022, the
prosecutor referenced Talley’s cognitive challenges when he was originally
sentenced and currently, saying, “Talley[,] at the time [of original sentencing] …,
was viewed as having somewhat of a diminished capacity, too, and that’s a large
reason why we afforded him the opportunity for supervision,” noting that “that
may still be the case.” The prosecutor emphasized the need to protect the public,
to punish Talley, and to get Talley intensive sex offender treatment, and asked the
circuit court to adopt the Department’s recommendation “with the higher end of
the initial confinement.”

¶20 Talley’s sentencing-after-revocation counsel also discussed Talley’s
cognitive challenges, saying:

[A]s the State already noted, … Talley is considered
borderline functioning. That means he’s not somebody
who’s considered completely cognitively challenged nor a
person of normal functions. So they’re in that borderline

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No. 2024AP830-CR

area. So they usually are considered people who operate at
a 70 to 80 IQ. He’s also semi-illiterate and he has
difficulty reading and writing and, most importantly,
comprehending words and reading assignments and things
of that nature.

….

Essentially, despite th[e] recommendation [that
Talley be provided with more verbal assignments and one-
on-one treatment], it took a long time … for the
Department to find what’s called adaptive sex offender
treatment for someone like … Talley, because adaptive is
required for someone with those challenges I just
described, meaning he can’t be in regular treatment and
expect to respond or succeed as well as a person who
doesn’t have those challenges.

Counsel went on to explain that Talley continued to struggle with long written
homework assignments in his sex offender treatment program, as he “cannot read
and write very well. He operates a[t] a borderline functioning level….” Counsel
also referenced that Talley was in his late 50s, that no one in the small town of
Adams-Friendship had reported Talley talking to minor females, that Talley’s
statement after a polygraph was the only evidence against him at the revocation
hearing, and that, despite the appearance of “a lot of holds and sanctions” in the
revocation summary, they occurred over the course of eight years, and most of
them occurred in the first two years of Talley’s probation.

¶21 Counsel emphasized that Talley had already spent two and one-half
years in the county jail for this offense and, therefore, was not “somebody who
hasn’t already been punished pretty well as a result of his actions.” Counsel
agreed with the Department and the prosecutor that Talley needed the intensive
sex offender treatment program offered through the prison system and
recommended that the circuit court follow the Department’s sentencing

9
No. 2024AP830-CR

recommendation, “but on the five-year end of” initial confinement. Talley
declined to address the court.

¶22 The circuit court began its remarks by noting that the legislature
considered a violation of WIS. STAT. § 940.225(2)(c) to be a serious offense: it was
designated as a class C felony and punishable by a maximum sentence of 40 years.
The court also noted that it had reviewed the file from the beginning of the case to
the present. The court discussed Talley’s pattern of approaching minor females,
even after he had been placed on GPS monitoring, as well as Talley’s termination
from sex offender treatment.

¶23 After reading from the revocation summary, the circuit court
addressed the need to protect the public, noting in particular Talley’s “grooming”
behavior. Addressing the need for rehabilitation, the court described the
ineffectiveness of the treatment offered while Talley was on probation and said
that, as a result, “there obviously needs to be close rehabilitative control. And that
rehabilitation, if it’s even possible, has got to take place in prison.” In addition to
protection of the public and rehabilitation of the defendant, the court also
emphasized the factor of deterrence, both for the public and for Talley himself.

¶24 Summarizing its remarks, the circuit court noted: “I think it is
necessary that the sentence be long enough to allow the process of aging to reduce
the danger presented by … Talley … until the passage of time and the aging
processes make him less of an immediate threat to Adams County’s children.”
Accordingly, the court sentenced Talley to ten years of initial confinement
followed by five years of extended supervision, explaining, “I believe this is the
minimum sentence that is consistent with the goals of protecting the public, the
gravity of the offense, the need to punish and deter, and his rehabilitative needs.”

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No. 2024AP830-CR

3. 2024 postconviction motion

¶25 In his motion for postconviction relief, Talley argued that two “new
factors” justified sentence modification: new or previously overlooked information
in the transcript of Talley’s original sentencing hearing, which was not made part
of the record prior to sentencing after revocation, and new information or the
correction of misinformation regarding Talley’s risk to reoffend as explained in a
new psychosexual report completed by Dr. Ryan Mattek. Specifically, Talley
argued that the transcript contains “the sentencing court’s comments and purpose
in sentencing” Talley, which the circuit court was required to be but was not aware
of at the sentencing after revocation. Talley also argued that the psychosexual
report established that Talley’s risk to reoffend and, therefore, his risk to the
public, “was vastly overstated by [the Department] in [the] revocation summary.”
The State argued that both of Talley’s challenges lacked merit.

¶26 The circuit court held a hearing on the motion, at which Dr. Mattek
testified regarding his report, which was received into evidence. Mattek testified
that, when he assessed Talley on the Static-99R, Talley’s score put him at Level II
– Below Average Risk. This is lower than the Level III – Average Risk, at which
Talley was assessed in his revocation summary. However, Mattek explained that
Talley’s dynamic risk factors raised his recidivism risk to “above-average,” which
was higher than the Department’s assessment. Mattek opined in his report that
this made Talley “a prime candidate for sex offender treatment” because dynamic
factors can be changed with treatment. In his testimony, Mattek also disputed the
conclusion in the revocation summary that Talley “was in his offense cycle,”
explaining that if individuals are not mirroring the exact behaviors they were
engaged in when they committed their earlier offenses, “it would be hard to tell” if
they were in their offense cycles. Mattek opined that some of the treatment that

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No. 2024AP830-CR

Talley received while on probation was “counterproductive” and
countertherapeutic, and that Talley “did relatively well on probation” considering
this. Finally, Mattek opined that Talley would be better treated in the community
under “appropriate structure and accountability,” and that long-term incarceration
would not serve the purpose of protecting the public.

¶27 After hearing argument from the State and the defense, the circuit
court denied Talley’s motion for sentence modification, concluding that Talley
had not demonstrated the existence of a new factor. Specifically, the court
concluded that: (1) the sentencing transcript was not highly relevant to the
imposition of sentence because the circuit court had all of the information that was
available to the sentencing court at the sentencing after revocation, and the circuit
court referred to the same sentencing factors as the sentencing court; and
(2) Mattek’s report and testimony could not be a new factor because they consist
of opinions, not facts.

B. Original Sentencing Transcript

¶28 On appeal, Talley argues, as he did in his postconviction motion,
that the first new factor is “new or previously overlooked information regarding
[his] original sentencing hearing in 2014.” Specifically, Talley argues that the
transcript of his original sentencing hearing in 2014 contains the sentencing
court’s purpose and rationale in sentencing Talley, which the circuit court was

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No. 2024AP830-CR

required to but did not consider at the sentencing after revocation.5 Talley
identifies, as the new information contained in the transcript, the following two
aspects of the sentencing court’s sentencing decision: (1) the sentencing court’s
recognition as mitigating circumstances of Talley’s “personal challenges due to his
cognitive functioning”; and (2) the sentencing court’s “primary purpose [] to
protect the public in the least restrictive way possible.” Talley concludes that
there is nothing in the record that conveyed this information contained in the
transcript to the circuit court at sentencing after revocation. We address these two
aspects in turn.

¶29 Cognitive challenges as mitigating circumstances. While Talley
accurately notes that the circuit court did not have access to the original sentencing
transcript itself, the revocation packet and the sentencing-after-revocation
transcript summarized above reveal that the circuit court was aware of Talley’s
cognitive challenges, was aware that the sentencing court was asked to consider
those challenges as mitigating circumstances to support probation as the least
restrictive option in 2014, and was itself asked to consider those challenges as
mitigating circumstances to support at least the lower range of the sentence
proposed by the Department in 2022. Accordingly, Talley’s cognitive
challenges—both that they exist and that they were in 2014 and remained in 2022

5
At times in his appellant’s brief, Talley suggests that it is the transcript of the original
sentencing itself that is the new factor, and that the circuit court was required to review the
transcript before sentencing Talley after revocation. However, a transcript is not itself a fact,
although it may contain “a fact or set of facts” that may constitute a new factor. Cf. Rosado v.
State, 70 Wis. 2d 280, 288, 234 N.W.2d 69 (1975) (defining new factor as “a fact or set of
facts”). And, in his reply brief, Talley concedes that case law has not established such a “bright-
line rule.” See State v. Walker, 2008 WI 34, ¶26, 308 Wis. 2d 666, 747 N.W.2d 673 (“[State v.
Reynolds, 2002 WI App 15, 249 Wis. 2d 798, 643 N.W.2d 165 (2001)] did not establish such a
bright-line rule,” and “no per se rule exists.”).

13
No. 2024AP830-CR

potential mitigating circumstances—cannot be a new factor because they were
“known to the [circuit court] at the time of … sentencing.” See Rosado, 70
Wis. 2d at 288; Harbor, 333 Wis. 2d 53, ¶58 (facts related to defendant’s mental
health are not a new factor because they were known to and considered by the
sentencing court).

¶30 Protecting the public in least restrictive way possible. The
sentencing-after-revocation transcript summarized above establishes that the
circuit court focused on protecting the public in the least restrictive way possible,
based not only on information that the sentencing court had in 2014 but also on
information since that time. For example, the circuit court referred to the need to
protect the public from Talley based on his admitted behavior, while on probation,
of driving past a middle school to look at children and telling minor females “that
he’d like to date them.” The sentencing court’s purpose and rationale based on the
information before it in 2014, whether or not known to the circuit court, was not
“highly relevant” to the circuit court’s sentencing after revocation, because the
circuit court considered and employed that same purpose and rationale, but based
on Talley’s entire file in 2022. See Schueller, 413 Wis. 2d 59, ¶29 (defendant
must show that that the unknown fact or facts are “highly relevant to the sentence
imposed”). Accordingly, the sentencing court’s purpose and rationale in
sentencing Talley, to protect the public in the least restrictive manner, is not a new
factor.

¶31 Talley argues that the circuit court was required to “familiarize itself
with the original sentencing reasons and explicitly acknowledge them on the
record at sentencing after revocation” and that the court could not do so without
the transcript of the original sentencing hearing. Talley supports this argument
based on language in State v. Reynolds, 2002 WI App 15, ¶8, 249 Wis. 2d 798,

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No. 2024AP830-CR

643 N.W.2d 165 (2001), stating that the record must show that a subsequent
sentencing court “acknowledged or adopted the reasoning of the first” sentencing
court.

¶32 We reject this argument for at least the following reasons. Our
supreme court has clarified that Reynolds only “supports the conclusion that
reviewing the original sentencing transcript may be necessary in some cases.”
State v. Walker, 2008 WI 34, ¶26, 308 Wis. 2d 666, 747 N.W.2d 673. Our
analysis rejecting Talley’s new factor challenge explains why the original
sentencing transcript was not necessary in this case.

¶33 Relatedly, Talley does not connect this argument to the legal
principles governing his new factor challenge. Reynolds did not involve a new
factor challenge, see Reynolds, 308 Wis. 2d 666, ¶¶1-2, and Talley does not
explain how its statement—that the subsequent sentencing court must
acknowledge the reasoning of the first sentencing court—would apply in the new
factor context. More specifically, Talley does not explain why the Reynolds
statement applies when, as here, the information presented to the sentencing court
was also presented to the circuit court and the reasoning of the sentencing court
was not relevant to the sentencing decision of the circuit court.

¶34 In addition, Reynolds is easily distinguished. As noted, it did not
involve a new factor challenge. Rather, the defendant, who was sentenced after
revocation, challenged the harshness of the sentence. More specifically, the
defendant argued that the subsequent sentencing court imposed a “severe”
sentence without reviewing the testimony at the trial at which a jury found him
guilty, the presentence investigation report prepared after that trial, or the first
sentencing court’s reasoning for imposing probation. Id., ¶¶1-2. This court

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No. 2024AP830-CR

agreed. Id., ¶¶14-15. This court explained that the trial testimony, presentence
investigation report, and sentencing comments conveyed “critical information”
that was “essential to a fair sentencing after revocation” in that case. Id., ¶¶11, 14.
In contrast, to repeat, Talley has failed to show that the substance of the transcript
of the original sentencing contains “critical information” essential to a fair
sentencing here.

¶35 In sum on this issue, we conclude that the substance of the original
sentencing transcript is not a new factor because Talley’s cognitive challenges
were known to the circuit court, and the sentencing court’s focus on protecting the
public in the least restrictive manner was not highly relevant to the sentence
imposed by the circuit court.

C. Psychosexual Report and Testimony

¶36 Talley argues on appeal, as he did in his postconviction motion, that
the second new factor is “new information or the correction of misinformation
related to [his] sex offender evaluations and risk level” as explained in the 2024
psychosexual report and the testimony of Dr. Mattek. Specifically, Talley asserts
that the psychosexual report and testimony “demonstrated that his risk to reoffend
sexually was vastly overstated by [the Department] in his revocation summary,
and that the sentence imposed by the [circuit] court will not have the desired effect
of further reducing his risk.” We reject this argument for the following reasons.

¶37 Talley’s argument is, in part, factually inaccurate. Mattek’s report
placed Talley’s risk level at above-average, while the Department’s summary
stated that Talley’s risk level was average. Both documents stated that Talley’s
dynamic and acute risk factors, those that he can change, placed him at a higher
risk of recidivism compared to his static factors, which he cannot change. Thus,

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No. 2024AP830-CR

Mattek’s report did not show that the Department’s summary overstated Talley’s
risk level.

¶38 Moreover, even if Mattek’s report did dispute the Department’s
assessment of Talley’s risk level, “the existence of a contradictory psychiatric
report” generally does not constitute a new factor; instead, it merely “establishes
that mental health professionals will sometimes disagree on matters” regarding
risk assessment and treatment. State v. Slagoski, 2001 WI App 112, ¶11, 244
Wis. 2d 49, 629 N.W.2d 50, overruled in part on other grounds by Harbor, 333
Wis. 2d 53. Here, what Talley argues is a new fact or set of facts is precisely the
type of disagreement on the appropriate assessment of risk rejected in the new
factor analysis in Slagoski. Id. In other words, it is “an expert’s opinion based on
previously known or knowable facts.” See State v. Sobonya, 2015 WI App 86, ¶7,
365 Wis. 2d 559, 872 N.W.2d 134. As summarized above, Mattek’s report and
testimony evidenced his disagreement with the opinions in the revocation
summary, namely, that Talley was “in his offense cycle” and that any treatment
needed to occur in prison. Talley provides no support for, and the language in the
case law refutes, his assertion that such an opinion constitutes a new factor.

¶39 Talley cites State v. Schueller, 413 Wis. 2d 59, in support of his
argument, but Schueller is readily distinguishable. In that case, Schueller was a
veteran, and his posttraumatic stress disorder (PTSD) was “a major focus” of the
sentencing hearing. Id., ¶¶3, 9. Specifically, the circuit court stated that
“Schueller’s PTSD diagnosis ‘aggravates the situation when you look at somebody
in terms of their danger to the public’”; that Schueller would “‘always have’”
PTSD; and that he required a long period of confinement and “‘would need to be
on supervision for the balance of his life,’ ‘given [his PTSD] diagnosis.’” Id.,
¶¶13-14.

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No. 2024AP830-CR

¶40 Nearly two decades later, Schueller filed a postconviction motion for
sentence modification based on the new factor “that the availability of new, highly
effective PTSD treatments had rendered PTSD in veterans highly treatable, and
even curable,” and attached an expert report on the topic. Id., ¶¶15-16. This court
concluded that Schueller presented a new factor. Id., ¶37. We explained that the
facts alleged in Schueller’s motion, specifically, “that PTSD in veterans such as
Schueller is now highly treatable, even curable, on an outpatient basis,” which
were undisputedly not known to the circuit court at the time of sentencing, are
highly relevant to the imposition of sentence, based on the circuit court’s
sentencing comments that Schueller would always pose a danger to the
community because the symptoms associated with his PTSD diagnosis would
never be cured. Id., ¶¶33-36.

¶41 Talley argues that, as in Schueller, he “proved that he is able to be
rehabilitated through an adequate sex offender treatment program.” This
argument is unsupported by the facts and the law. As stated, the new factor in
Schueller was the fact that PTSD in veterans was treatable and possibly curable,
based on research performed after Schueller’s sentencing. Unlike in Schueller,
here, Talley has not presented any new facts, based on information not yet in
existence at his sentencing after revocation, about the treatability or curability of
his condition. Instead, Talley has presented only the opinion of an expert as to
Talley’s amenability to treatment, based entirely on facts that were in existence
and known to the circuit court at sentencing after revocation. This is more
analogous to the facts in Slagoski, in which a postconviction psychiatric report
that opined that the defendant was not likely to reoffend, in contrast to opinions
available to the court at sentencing, was not a new factor. Slagoski, 244 Wis. 2d
49, ¶¶1, 11. Accordingly, Schueller does not support Talley’s argument.

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No. 2024AP830-CR

¶42 Talley also argues that if Mattek’s report and testimony are not a
new factor because they are opinions, not facts, we would have concluded that
Schueller did not present a new factor. However, as we have explained, unlike
Talley here, Schueller presented an opinion that was based on new facts that did
not exist at his original sentencing. As we have also explained, our conclusion in
Schueller is consistent with our ruling in Slagoski, and Talley fails to show
otherwise. See Schueller, 413 Wis. 2d 59, ¶44 (explaining how Slagoski is
consistent with Schueller).

¶43 Talley also briefly asserts that he “had not before been properly
evaluated with a full psychosexual examination by a qualified psychologist.”
However, he does not develop an argument beyond this conclusory assertion, and
we address it no further. See Wisconsin Conf. Bd. of Trs. of the United
Methodist Church, Inc. v. Culver, 2001 WI 55, ¶38, 243 Wis. 2d 394, 627
N.W.2d 469 (stating that we need not address arguments that are conclusory and
undeveloped).

¶44 Talley makes additional arguments in his reply brief as to why
Mattek’s report was highly relevant to the imposition of sentence. Because we
conclude that the report and testimony are not a new factor because they consist of
opinions, not facts, we need not address whether they were highly relevant. See
Schueller, 413 Wis. 2d 59, ¶29 (“[A] defendant is not entitled to sentence
modification if the facts alleged in the motion do not constitute a new factor as a
matter of law—either because they are not new, or because they are not highly
relevant to the sentence imposed.”).

¶45 In sum on this issue, we conclude that the psychosexual examination
and report did not contain facts unknown to the circuit court at the time of

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No. 2024AP830-CR

sentencing after revocation, and, accordingly, the psychosexual report and
testimony are not a new factor.

CONCLUSION

¶46 For the foregoing reasons, we conclude that Talley failed to
demonstrate the existence of a new factor by clear and convincing evidence.
Accordingly, we affirm.

By the Court.—Judgment and order affirmed.

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

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