                                                             2018 WI 66

                  SUPREME COURT             OF   WISCONSIN
CASE NO.:              2015AP1799-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Appellant,
                            v.
                       Anthony R. Pico,
                                 Defendant-Respondent-Petitioner.

                           REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 376 Wis. 2d 524, 900 N.W.2d 343
                                      (2017 – unpublished)

OPINION FILED:         June 15, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         February 19, 2018

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Waukesha
   JUDGE:              Michael O. Bohren

JUSTICES:
   CONCURRED:          R.G. BRADLEY, J., concurs, joined by KELLY, J.
                       (opinion filed).
  DISSENTED:           ABRAHAMSON, J., dissents, joined by A.W.
                       BRADLEY, J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-respondent-petitioner, there were briefs
filed by Tracey A. Wood, Sarah M. Schmeiser, and Tracey Wood &
Associates,         Madison.     There was an oral argument by         Anthony
Cotton.


       For the plaintiff-appellant, there was a brief filed by
Sarah    L.       Burgundy,    assistant   attorney   general,   and   Brad   D.
Schimel, attorney general.            There was an oral argument by Sarah
L. Burgundy.
    An amicus curiae brief was filed on behalf of Wisconsin
Association of Criminal Defense Lawyers by Robert R. Henak and
Henak Law Office, S.C., Milwaukee.




                                2
                                                                        2018 WI 66
                                                                NOTICE
                                                  This opinion is subject to further
                                                  editing and modification.   The final
                                                  version will appear in the bound
                                                  volume of the official reports.
No.       2015AP1799-CR
(L.C. No.    2012CF547)

STATE OF WISCONSIN                           :             IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Appellant,
                                                                     FILED
      v.                                                        JUN 15, 2018

Anthony R. Pico,                                                   Sheila T. Reiff
                                                                Clerk of Supreme Court

              Defendant-Respondent-Petitioner.




      REVIEW of a decision of the Court of Appeals.                Affirmed.



      ¶1      DANIEL KELLY, J.     A jury convicted Anthony R. Pico of

sexually assaulting a young girl.1         Mr. Pico believes there is a

reasonable probability that, absent his trial counsel's alleged
constitutional ineffectiveness, this conviction would not have

occurred.       The   circuit   court   agreed,     and    so    set    aside     his




      1
       The Honorable William J. Domina, Waukesha County Circuit
Court, presiding.
                                                                         No.   2015AP1799-CR



conviction.2        The    court        of   appeals    did    not        agree,     and    so

reinstated the conviction.3

     ¶2   Mr.       Pico       asked    us   to   review      his    case      because     he

believes the court of appeals did not properly defer to the

circuit court's findings of fact when conducting the ineffective

assistance     of    counsel           analysis     required        by    Strickland        v.

Washington, 466 U.S. 668 (1984).                  The State, on the other hand,

believes the court of appeals decided the matter correctly and

that it was the circuit court that erred when it allowed an

expert to testify about the reasonableness of defense counsel's

representation.       Finally, Mr. Pico argues that if we agree with

the State, then we should send the case back to the circuit

court because his sentence was improperly enhanced based on his

continued assertion of innocence during the sentencing phase of

this matter.

     ¶3   These arguments call on us to review the following

three issues.        First, whether the court of appeals improperly

substituted the circuit court's findings of fact with its own
when it assessed the sufficiency of trial counsel's performance.

Second,   whether         an    expert       witness    may     testify        about       the

reasonableness       of    trial        counsel's    performance.              And   third,

     2
       The Honorable Michael O. Bohren, Waukesha County Circuit
Court, presided over the Machner hearing. See State v. Machner,
92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).
     3
       This is a review of an unpublished decision of the court
of appeals, State v. Pico, No. 2015AP1799-CR, unpublished slip
op. (Wis. Ct. App. May 10, 2017).


                                              2
                                                                         No.    2015AP1799-CR



whether the circuit court improperly relied on Mr. Pico's lack

of remorse when it fashioned his sentence.                        With respect to the

first issue, we conclude that the court of appeals conducted the

Strickland analysis properly and that Mr. Pico's trial counsel

performed as required by the constitution.                        As to the second, we

hold that expert testimony at a Machner4 hearing regarding the

reasonableness of trial counsel's performance is not admissible.

And finally, we hold that the circuit court did not err when it

imposed sentence on Mr. Pico.

                                    I.     BACKGROUND

       ¶4       D.T., a primary-school student, said Mr. Pico put his

hand inside her pants and touched her vagina twice while he was

volunteering in her classroom.                 She reported the incident to her

mother that evening (a Friday), who in turn informed D.T.'s

school the following Monday.                   Upon learning of the incident,

D.T.'s school contacted the police.

       ¶5       Detective Andrew Rich met Mr. Pico in his home to

investigate the event.              During at least part of the interview,
Detective Rich used what is known as the "Reid technique."                              This

technique involves telling the interviewee that law enforcement

officials        have    certain    incriminating         evidence       (which    they   do

not,       in   fact,    have),    in    the   hope      that    the   interviewee      will

disclose factually accurate details about the event in question.

For    example,         while   discussing         the   event    with    Mr.    Pico   (and


       4
           Machner, 92 Wis. 2d 797.


                                               3
                                                                  No.    2015AP1799-CR



without identifying D.T. as the victim), Detective Rich told Mr.

Pico that there were video cameras in the classroom, that male

DNA had been found on the victim's clothing in the area she said

she    was    touched,    and    that    another       student    had     "partially

substantiated" the complainant's allegation.                     None of that was

true, but when asked if any of this made sense to him, Mr. Pico

stated "[y]eah, I remember."            Mr. Pico then provided D.T.'s name

and described how he "tickled" and massaged her leg.                            Further

questioning resulted in Mr. Pico's acknowledgement that, in the

course of this behavior, he had moved his hand under her pants,

but claimed it was inadvertent.               Detective Rich accused Mr. Pico

of putting his hand down D.T.'s pants twice and that he had done

so    "intentionally     rather    than       just   by   mistake."        Mr.    Pico

responded "I don't know.          I don't——I don't recall ever doing it

the second time, but it shouldn't have happened the first time,

right."       And when Detective Rich suggested that, "[o]nce you

walked out of that class I bet you were——well, you were probably

just sick to your stomach," Mr. Pico responded "Yes."
       ¶6     The State charged Mr. Pico with one count of first-

degree       sexual   assault     of    D.T.,        contrary     to     Wis.     Stat.

§§ 948.02(1)(e) and 939.50(3)(b) (2011-12).5                     The case went to

trial,      following    which    the   jury     found    Mr.     Pico    guilty    as

charged.       He received his sentence in due course, during which

the circuit court commented on Mr. Pico's lack of remorse:

       5
       All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.


                                          4
                                                             No.   2015AP1799-CR


    What I mean when I say that is acknowledging your
    conduct . . . I will consider whether or not you
    demonstrate remorse as a part of my sentence.

    . . . .

    I'm offended that          you don't have the courage to
    recognize, and don't        give me a half story of I touched
    her but not enough,        I didn't touch her in the way she
    said. I don't accept       it, Mr. Pico. That's half a loaf.
    ¶7      Mr. Pico filed a postconviction motion seeking a new

trial    and   resentencing,     asserting    that     his    trial    counsel

provided    constitutionally-inadequate      assistance       because,    inter

alia, he failed to investigate an old brain trauma.                      Twenty

years before these events, Mr. Pico had suffered a motorcycle

accident that resulted in an injury to the frontal lobe of his

brain.     The injury caused Mr. Pico to experience double vision,

for which he still wears an eyepatch.           The eyepatch, Mr. Pico

says,    should   have   alerted    trial    counsel    to     the    need   to

investigate his mental capacity.         That investigation, he claims,

would have led to his medical records, and the records would

have caused a reasonable attorney to suggest to his client that

he may wish to consider a plea of not guilty by reason of mental

disease or defect.6      Mr. Pico believes the records also would

have provided support for a motion to suppress the statements he

made to Detective Rich because the injury left him unusually

susceptible to the "Reid technique" Detective Rich had used.
    6
       "A person is not responsible for criminal conduct if at
the time of such conduct as a result of mental disease or defect
the person lacked substantial capacity either to appreciate the
wrongfulness of his or her conduct or conform his or her conduct
to the requirements of law." Wis. Stat. § 971.15(1).


                                     5
                                                                   No.    2015AP1799-CR



    ¶8      Mr.   Pico's     motion    also        claimed    his        counsel     was

ineffective because of several alleged errors during the course

of his trial.      He says his trial counsel should have presented

an expert to establish that the "Reid technique" can produce

false confessions.        Additionally, he faults his counsel for not

presenting an expert witness in response to Ms. Sarah Flayter, a

child advocacy interviewer, who testified for the State about

her forensic interview of D.T.              He also believes his counsel

should   have     objected    to     some     of     Detective       Rich's        trial

testimony, as well as to some of the statements Detective Rich

made during Mr. Pico's recorded interview, which were played for

the jury.     Further, he faulted trial counsel for not introducing

evidence that D.T. had just learned about "good touches" and

"bad touches" in school.           And finally, he thinks his counsel

should have called Mr. Pico's wife as a witness to explain that

their daughter has a sensory disorder and that they have learned

that massaging her leg calms her.

    ¶9      The postconviction motion's final assignment of error
relates to the alleged enhancement of Mr. Pico's sentence for

failing to show remorse.           He did not show remorse, Mr. Pico

says, because he is innocent of the crime for which he was

convicted.      Increasing the sentence of a defendant who does not

demonstrate     remorse    because    he    maintains        his     innocence,       he




                                       6
                                                                      No.    2015AP1799-CR



argues, comprises punishment for exercising his right to remain

silent.7

       ¶10    The circuit court conducted a Machner hearing at which

it    received    testimony       from    several      witnesses,       including       Mr.

Pico's trial counsel and an attorney who testified about the

reasonableness of trial counsel's representation.                            The circuit

court      concluded       that    Mr.     Pico's          counsel     had     performed

deficiently      and,     although    none      of    the    errors    standing       alone

prejudiced Mr. Pico, the cumulative effect was to deny him the

effective       assistance    of     counsel.              Consequently,      the     court

vacated the conviction.

       ¶11    The State appealed, arguing that Mr. Pico's counsel

had     not    provided     ineffective         assistance.           The    State     also

asserted it was improper for the defendant to introduce expert

testimony on the reasonableness of defense counsel's performance

for purposes of the Strickland analysis.                        The court of appeals

reversed the circuit court and reinstated Mr. Pico's conviction

because it determined that trial counsel's representation was
not   deficient.          However,   it    did       not    address    the    Strickland

expert       testimony    question,       nor    did       it   address      Mr.     Pico's




       7
       His motion further claimed the sentencing court improperly
considered his California conviction.      However, he did not
address this issue here, so we will not address it. A.O. Smith
Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588
N.W.2d 285 (Ct. App. 1998) ("[A]n issue raised on appeal, but
not briefed or argued, is deemed abandoned.").


                                           7
                                                                        No.        2015AP1799-CR



sentencing claim because he did not raise the issue in a cross-

appeal.

     ¶12       We granted Mr. Pico's petition for review, and now

affirm.

                            II.        STANDARD OF REVIEW

     ¶13       An ineffective assistance of counsel claim presents a

mixed question of fact and law.                       State v. Tourville, 2016 WI 17,

¶16, 367 Wis. 2d 285, 876 N.W.2d 735.                          We will not reverse the

circuit     court's      findings        of       fact     unless     they    are      clearly

erroneous.       Id.     "Findings of fact include 'the circumstances of

the case and the counsel's conduct and strategy.'"                                   State v.

Thiel,     2003      WI 111,      ¶21,        264      Wis. 2d 571,     665        N.W.2d 305

(citation omitted).            We independently review, as a matter of

law, whether those facts demonstrate ineffective assistance of

counsel.       Id.

     ¶14       The   imposition         of    a   criminal      sentence      involves      the

circuit court's exercise of discretion.                        We apply the "erroneous

exercise of discretion" standard in reviewing such decisions.
State     v.    Loomis,     2016         WI 68,         ¶30,    371   Wis. 2d 235,          881

N.W.2d 749 ("'This court reviews sentencing decisions under the

erroneous        exercise         of         discretion        standard.'"           (citation

omitted)).        "An erroneous exercise of discretion occurs when a

circuit court imposes a sentence 'without the underpinnings of

an   explained         judicial        reasoning         process.'"          Id.     (citation

omitted).

     ¶15       "Whether to admit proffered expert testimony rests in
the circuit court's discretion."                       State v. LaCount, 2008 WI 59,
                                                  8
                                                                     No.    2015AP1799-CR



¶15, 310 Wis. 2d 85, 750 N.W.2d 780 (internal quotation marks

omitted)      (quoting     State      v.     Shomberg,   2006    WI 9,           ¶10,   288

Wis. 2d 1, 709 N.W.2d 370).                "[O]ur review of a circuit court's

use of its discretion is deferential, and we apply the erroneous

exercise of discretion standard."                LaCount, 310 Wis. 2d 85, ¶15.

We will not overturn the circuit court's exercise of discretion

so long as the decision "had 'a reasonable basis,' and if the

decision was made 'in accordance with accepted legal standards

and in accordance with the facts of record.'"                             Id. (citation

omitted).      We may also "search the record for reasons to sustain

the circuit court's exercise of discretion."                   Id.

                                   III. ANALYSIS

      ¶16    We begin our analysis with Mr. Pico's argument that

the court of appeals supplanted the circuit court's role as the

finder of fact in the Machner hearing.                       We then consider the

admissibility of expert testimony regarding the reasonableness

of   defense    counsel's       performance.         Finally,        we    address      Mr.

Pico's      argument     that   the        circuit   court    imposed        a     harsher
sentence on him because he refused to admit his guilt.

                 A.      Ineffective Assistance of Counsel

      ¶17    We review Mr. Pico's ineffective assistance of counsel

claim because he says the court of appeals did not properly

distinguish between findings of fact and conclusions of law when

it conducted the Strickland analysis.                    Specifically, he says

that the court of appeals "disagreed with every one of [the

circuit court's] findings and substituted its own findings of
fact and weight to be placed on the evidence."                             Of the many
                                             9
                                                                      No.     2015AP1799-CR



reasons      Mr.    Pico     believes       his    counsel     was    constitutionally

ineffective, the most significant is his insistence that trial

counsel should have explored Mr. Pico's mental capacity further

than he did.         We will address this assignment of error in some

detail as a means of exploring the method by which the court of

appeals reviewed the circuit court's decision.                              Then we will

consider      whether       the    court     of    appeals     deviated       from        that

methodology as it addressed the remaining claims of defective

performance.

       ¶18    The    "effective       assistance       of     counsel"       is    a   right

vouchsafed to every criminal defendant by the Sixth Amendment to

the United States Constitution.8                  Strickland, 466 U.S. at 686.               A

defendant      is    denied       that     right    when     his     counsel       performs

deficiently, and the deficiency prejudices his trial.                             See State

v. Pitsch, 124 Wis. 2d 628, 633, 369 N.W.2d 711 (1985); see also

Strickland, 466 U.S. at 687.

       ¶19    The first prong of the Strickland analysis requires us

to     compare      counsel's       performance        to     the    "wide        range    of
professionally competent assistance."                       Strickland, 466 U.S. at

690.        Only    if     his    conduct    falls     outside       that     objectively

reasonable         range    will    we      conclude    that        counsel       performed

deficiently.         Thiel, 264 Wis. 2d 571, ¶19.                    "The question is

whether an attorney's representation amounted to incompetence

under      prevailing      professional       norms,    not    whether       it    deviated


       8
           See U.S. Const. amend. VI; Wis. Const. art. I, § 7.


                                             10
                                                              No.    2015AP1799-CR



from   best    practices    or   most   common    custom."        Harrington    v.

Richter, 562 U.S. 86, 88 (2011).                 We presume that counsel's

assistance fell within that range.             Strickland, 466 U.S. at 689

("[A] court must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance . . . .").

       ¶20    To show prejudice (the second prong), a defendant must

establish     "'a   reasonable    probability     that,     but   for   counsel's

unprofessional errors, the result of the proceeding would have

been    different.'"        Pitsch,     124    Wis. 2d      at    642   (quoting

Strickland, 466 U.S. at 694).             "A reasonable probability is a

probability sufficient to undermine confidence in the outcome."

Strickland, 466 U.S. at 694.            A lack of confidence arises when

"'counsel's errors were so serious as to deprive the defendant

of a fair trial, a trial whose result is reliable.'"                    Lockhart

v. Fretwell, 506 U.S. 364, 369 (1993) (quoting Strickland, 466

U.S. at 687).         The court need not address this prong if the

petitioner fails to satisfy the first prong.                     Strickland, 466
U.S. at 697 ("[T]here is no reason for a court deciding an

ineffective assistance claim to approach the inquiry in the same

order or even to address both components of the inquiry if the

defendant     makes   an   insufficient      showing   on   one.");     State   v.

Carter, 2010 WI 40, ¶21, 324 Wis. 2d 640, 782 N.W.2d 695 ("to

succeed on [a] claim of ineffective assistance of counsel, [the

defendant] must satisfy both prongs of the Strickland test.").




                                        11
                                                                         No.     2015AP1799-CR



                 1.     Trial Counsel's Duty to Investigate

    ¶21        Mr. Pico says his eyepatch, along with his confusion

during his interview with Detective Rich, should have caused

trial counsel to investigate his mental capacity.                                   If he had

done so, Mr. Pico argues, his counsel would have discovered the

significance of his head injury, which would have, in turn,

caused counsel to suspect it may have compromised his mental

capacity.       Mr. Pico believes his compromised condition may have

prevented him from forming the intent necessary to support a

criminal conviction.              If trial counsel had known this, Mr. Pico

concludes, his counsel would have advised him on the possibility

of entering a plea of not guilty by reason of mental disease or

defect.        Mr.    Pico    also       says    his   injury       makes     him   unusually

susceptible to suggestion.                  Therefore, even if a plea of not

guilty    by    reason       of    mental       disease      or    defect     had    not   been

appropriate, this information could have provided support for a

motion to suppress the statements he made to Detective Rich.

Without the investigation, however, neither of these strategic
options were available.

    ¶22        The    duty    to     investigate          is      certainly    one    of    the

components of effective representation.                            "Counsel must either

reasonably investigate the law and facts or make a reasonable

strategic       decision          that     makes       any        further      investigation

unnecessary."         State v. Domke, 2011 WI 95, ¶41, 337 Wis. 2d 268,

805 N.W.2d 364.         We review the reasonableness of trial counsel's

decisions not with the benefit of hindsight, but in the context
of the circumstances as they existed at the time he made his
                                                12
                                                                  No.     2015AP1799-CR



decisions.         "We must consider the law and the facts as they

existed     when     trial     counsel's     conduct     occurred."         State     v.

Felton, 110 Wis. 2d 485, 502-03, 329 N.W.2d 161 (1983) (emphasis

added); see also Strickland, 466 U.S. at 689 ("A fair assessment

of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct

the   circumstances          of     counsel's   challenged      conduct,      and     to

evaluate the conduct from counsel's perspective at the time.").

So we examine the circumstances as if we were encountering them

just as trial counsel did, making every effort to ensure our

knowledge of the present does not affect how we assess what was

known to him at the time.              Therefore, we begin with a précis of

pre-trial facts.

      ¶23    Mr. Pico's counsel acknowledged that he had been aware

of Mr. Pico's head injury since his first meeting with him.                           He

said the intake process for new clients includes a discussion of

the   client's       medical       conditions   and   diagnosis.         During     this

process,    he     asked     Mr.    Pico   about   his   eye    patch.      Mr.     Pico
described his motorcycle accident and head injury, but indicated

he had recovered.            His counsel said he subsequently discussed

this injury with both Mr. Pico and his family.                   No one mentioned

any lingering effects of the accident (other than the double

vision), nor did anyone say it had affected Mr. Pico's behavior.

To the contrary, Mr. Pico's family described him as a great

father    and    a    well-adjusted        individual     who    was     productively

involved in his community.              Trial counsel observed nothing about


                                           13
                                                            No.     2015AP1799-CR



Mr. Pico's conduct to call any of those characterizations into

question.

     ¶24    Mr.    Pico   now   claims   his   confusion    and    nervousness

during the interview with Detective Rich should have been enough

to inform his counsel that his mental capacity was questionable.

Trial    counsel    witnessed    that    behavior    when   he    reviewed   the

recorded interview, and he discussed it with Mr. Pico.                  But Mr.

Pico did not connect his conduct to his head injury.                   Instead,

he said that when Detective Rich arrived at his home, he was

confused because he thought perhaps one of his children might

have been involved in an emergency situation.               So trial counsel

attributed    Mr.     Pico's     confusion     and    nervousness      to    the

surprising nature of Detective Rich's visit and the fact that he

was being questioned about a very serious crime.9

     ¶25    At the Machner hearing, Mr. Pico presented Dr. Horace

Capote, a neuropsychiatrist, to explain the significance of the

head trauma he had suffered in the motorcycle accident.                      Dr.


     9
       Mr. Pico's counsel said he actually did consider the
possibility of a plea of not guilty by reason of mental disease
or defect, as was his standard practice. He explained that, in
evaluating whether such an approach may be appropriate, he
considers a number of factors, including the client's social
history, how the client interacts, whether the client is logical
and makes sense, whether the client has ever had any mental
health issues, and whether he observed symptoms that caused him
to believe that a further exploration of mental capacity was
necessary.   He chose not to pursue this option because he did
not observe anything suggestive of ongoing symptoms related to
the brain injury (other than the double vision) that would
support an NGI defense.


                                        14
                                                                   No.        2015AP1799-CR



Capote       said    Mr.   Pico's      records    reflect    that        he     had      been

diagnosed with "frontal lobe syndrome," the symptoms of which

include       deficits      in     cognitive,     emotional,       and         behavioral

functioning.          Mrs. Pico testified at the Machner hearing that

Mr. Pico shuts down when faced with frustration, that he often

tells       the     same    long,       boring    stories,       that         he      avoids

confrontation, and that he often gives in to what others want.

Dr. Capote said this is consistent with frontal lobe syndrome.

       ¶26     Mr. Pico's post-hoc explanations about the seriousness

of his head injury, however, miss the point.                      An investigation

into    a    client's      mental      capacity   is    unwarranted           unless      the

information known before trial suggests the need for such an

exploration.         Mr. Pico's presentation at the Machner hearing did

not provide the type of information necessary for the court to

assess the reasonableness of trial counsel's decision not to

pursue       that    investigation.         His   expert,    Dr.     Capote,           never

examined him.          Instead, he based his testimony on a review of

20-year-old         records.       Therefore,     Dr.   Capote     could        offer     no
opinion about whether behavior contemporaneous with Mr. Pico's

criminal charge could have informed a reasonable attorney of the

need    to    investigate        his   client's   mental    capacity.              Had    the

information presented by Dr. Capote been known to Mr. Pico's

counsel prior to trial, it may have been enough to require him

to further investigate Mr. Pico's mental capacity.                                 But the

important point here is that it was not known to counsel before

trial.       If we were to apply that information retrospectively to
evaluate counsel's pre-trial strategic decisions, we would be
                                           15
                                                                    No.     2015AP1799-CR



doing    exactly   what    Strickland      prohibits,          to   wit,     evaluating

counsel's       performance       with     the        "distorting          effects     of

hindsight[.]"      Strickland, 466 U.S. at 689.

      ¶27    The information available to Mr. Pico's counsel before

trial was much more limited than what Mr. Pico presented at the

Machner     hearing.      He    knew   that     Mr.    Pico    experienced        double

vision as the result of a motorcycle accident, and that he was

flustered when questioned by the police about a very serious

crime.      Mr. Pico expects these two facts to carry more weight

than they can bear.            "In evaluating counsel's decision not to

investigate,       this        court     must         assess        the      decision's

reasonableness in light of 'all the circumstances,' 'applying a

heavy measure of deference to counsel's judgments.'"                              Carter,

324   Wis. 2d 640,     ¶23     (quoting    Strickland,          466   U.S. at        691).

Double vision and nervousness during a police interview, alone,

are insufficient to suggest there may be a need to investigate

the defendant's mental capacity.               There is nothing in the record

suggesting double vision interferes with (or impacts or affects
or    alters)    mental    capacity.           And    nervousness         under    these

circumstances could be the result of any number of factors that

have nothing to do with a brain injury.

      ¶28    Accordingly, we conclude that trial counsel's decision

not   to    further    investigate       Mr.    Pico's    mental          capacity     was

reasonable and fell within the "wide range of professionally

competent assistance."           Strickland, 466 U.S. at 690.                     In the

absence of the investigation, there was no basis for Mr. Pico's
attorney to counsel Mr. Pico on the advisability of a plea of
                                         16
                                                                No.     2015AP1799-CR



not guilty by reason of mental disease or defect.                     Nor was there

a basis for a motion to suppress the statements Mr. Pico made to

Detective Rich.       This necessarily means trial counsel could not

have performed deficiently with respect to those topics because

an attorney does not perform deficiently when he chooses not to

pursue tactics that lack factual or legal support.                     See State v.

Cameron, 2016 WI App 54, ¶27, 370 Wis. 2d 661, 885 N.W.2d 611

("It is not deficient performance for counsel not to make a

pointless    objection.");       see   also    State    v.    Jacobsen,       2014   WI

App 13, ¶49, 352 Wis. 2d 409, 842 N.W.2d 365 ("An attorney does

not perform deficiently by failing to make a losing argument.");

State v. Swinson, 2003 WI App 45,                ¶59, 261 Wis. 2d 633, 660

N.W.2d 12 ("Trial counsel's failure to bring a meritless motion

does not constitute deficient performance."); State v. Toliver,

187   Wis. 2d 346,        360,     523       N.W.2d 113       (Ct.     App.     1994)

("[Defendant]     has     failed       to     show     that     trial      counsel's

performance was deficient and thus, we determine his ineffective

assistance of counsel claim is meritless.").
                                         *

      ¶29   We   arrive   at     the   same    conclusion      as    the   court     of

appeals with respect to trial counsel's duty to investigate.

But more importantly for the issue at hand, we see no error in

the court of appeals' methodology in reaching that conclusion.

      ¶30   As we conducted each step of our analysis, we kept

careful watch for any of the circuit court's factual findings

that would impede or contradict our (or the court of appeals')
reasoning.       We   identified       only    one   (more     about    that    in   a
                                         17
                                                                       No.   2015AP1799-CR



moment).         In all other instances, Mr. Pico's claim that the

court of appeals simply ignored the circuit court's findings of

fact in favor of its own is unsupported by the record.                          Instead,

his     argument     indicates          he    mistook       the      circuit      court's

conclusions of law for findings of fact.                          Thus, he says the

circuit court "found" that his counsel should have investigated

his injury because it would have a significant effect on his

case, so he concluded the court of appeals improperly rejected

that    "finding"     when    it     concluded       no    such     investigation       was

necessary.         Similarly,      he   says       the    court   of    appeals      "found

because there was no proof the family or Pico told [his counsel]

about the significance of the brain damage, he had no duty to

investigate or raise the issue in any way."                       Further, he argues

the court of appeals "disregarded the [circuit court's] factual

finding that the attorney decided not to investigate, and that

deficiency led to the conviction."

       ¶31   A    court's    factual     findings         address      the   "who,     what,

when, and where" of a case.10                     In the specific context of an
ineffective       assistance    of      counsel     claim,    "[f]indings         of    fact

include 'the circumstances of the case and the counsel's conduct

and strategy.'"       Thiel, 264 Wis. 2d 571, ¶21 (citation omitted).

       10
       See, e.g., Fact, Black's Law Dictionary (10th ed. 2014)
(defining a "fact" as including "[s]omething that actually
exists[,]" "not just tangible things, actual occurrences, and
relationships, but also states of mind such as intentions and
the holding of opinions[,]" and "[a]n actual or alleged event or
circumstance,   as   distinguished   from  its   legal   effect,
consequence, or interpretation.").


                                             18
                                                                          No.     2015AP1799-CR



The court of appeals is duty-bound to defer to those factual

findings unless they are clearly erroneous.

       ¶32    Thiel's reference to "counsel's conduct and strategy,"

however,      does     not    encompass          the       wisdom    or     constitutional

sufficiency of that conduct or strategy.                           Thiel contemplates a

simple accounting of historical events:                           What did counsel do,

and    what    strategy       did     he     employ?              Whether       the    factual

description      of    counsel's        strategy           and    conduct        add     up     to

deficient performance is a question of law that is subject to de

novo review.         "The questions of whether counsel's behavior was

deficient and whether it was prejudicial to the defendant are

questions of law, and we do not give deference to the decision

of the circuit court."               Pitsch, 124 Wis. 2d at 634; see also

State v. Knight, 168 Wis. 2d 509, 514 n.2, 484 N.W.2d 540 (1992)

("The final determination of whether counsel's performance was

deficient     and     prejudiced      the    defense          are   questions          of     law,

however, and a reviewing court need not grant deference to the

decisions of the circuit court.").
       ¶33    Thus, when Mr. Pico claims the circuit court "found"

that   his    counsel       should    have    investigated           Mr.    Pico's       mental

capacity more extensively than he did, he is not referring to a

factual      finding    at    all,    but     to       a   conclusion       of     law.         We

determine whether trial counsel's investigation should have been

more   extensive       by    applying      the     legal      standard      to     the      known

facts.        Here,    the     standard       is       that      counsel        must   "either

reasonably investigate the law and facts or make a reasonable
strategic      decision        that     makes          any       further        investigation
                                             19
                                                                        No.    2015AP1799-CR



unnecessary."            Domke, 337 Wis. 2d 268, ¶41.                  In applying that

standard      to    the    known       facts,    the   court    of     appeals       owed       no

deference to the circuit court because this is a question of

law.      See      Pitsch,   124       Wis. 2d at      634;    see    also     Knight,      168

Wis. 2d at 514, n.2.           Likewise, when Mr. Pico complains that the

court of appeals "found because there was no proof the family or

Pico told [trial counsel] about the significance of the brain

damage, he had no duty to investigate or raise the issue in any

way," he is recasting a legal conclusion as a finding of fact.

The court of appeals did not, in so concluding, "find" anything.

It applied the standard (reasonable investigation) to the fact

(neither "the family [n]or Pico told [trial counsel] about the

significance of the brain damage") and arrived at its legal

conclusion (no duty to investigate further).                           The same is true

of Mr. Pico's claim that the court of appeals was obligated to

defer to the circuit court's "factual finding that the attorney

decided      not    to    investigate,         and   that     deficiency       led    to    the

conviction."          The extent of trial counsel's investigation is
undisputed.         But the circuit court and court of appeals differed

on   whether       this    comprised       a    "deficiency"         that     "led    to    the

conviction."         That disagreement, of course, is about whether the

agreed    facts      satisfy       a    legal    standard.        As    such,        it    is   a

question of law on which the court of appeals owed no deference

to the circuit court.

       ¶34    Mr. Pico did accurately identify that the court of

appeals set aside one of the circuit court's factual findings as
it analyzed his counsel's duty to investigate.                           It is the same
                                                20
                                                                  No.    2015AP1799-CR



one we were constrained to set aside.                      The circuit court said

trial counsel did not discuss Mr. Pico's head injury with his

family.       That      finding     was     clearly       erroneous     because     the

transcript from the Machner hearing unequivocally demonstrates

that trial counsel did have that conversation with Mr. Pico's

family.     State v. Pico, No. 2015AP1799-CR, unpublished slip op.,

¶46 n.6 (Wis. Ct. App. May 10, 2017).

                 2.     Defense Counsel's Trial Performance

      ¶35   Mr.       Pico   also        believes    he     received     ineffective

assistance of counsel because of how his counsel conducted his

trial.      He    is    dissatisfied       with     trial    counsel's     choice   of

witnesses, his failure to object to certain testimony, the lack

of motions in limine to prevent the exploration of some topics

during trial, and his decision not to introduce evidence Mr.

Pico believes would have been helpful to him.                         Much, but not

all, of Mr. Pico's argument on this score is the same as above,

to wit, that the court of appeals substituted its own judgment

for   the   circuit      court's     factual      findings.       He    cites     three
additional instances in which he believes this occurred.                            We

will address each in turn.11

      ¶36   First, Mr. Pico says his counsel should have moved to

suppress    the   statements        he    made    during    the   police   interview

because Detective Rich used the "Reid technique."                        The circuit

      11
       Mr. Pico's briefs purport to identify other instances in
which the court of appeals usurped the circuit court's fact-
finding role. But close examination reveals them to be repeats
of allegations already made.


                                            21
                                                               No.    2015AP1799-CR



court agreed and said such a motion would have been successful.

Mr. Pico characterizes that statement as a finding of fact that

binds the court of appeals unless it was clearly erroneous.                        The

potential success of such a motion, however, is not a matter of

historical fact.        It is a conclusion of law based on the circuit

court's exercise of judgment in applying the appropriate legal

standard    to    the    circumstances        comprising     Detective       Rich's

interview with Mr. Pico.           The court of appeals owed the circuit

court no deference on this question.                 Mr. Pico's suppression

argument    depends     on   his   injury-induced    susceptibility          to    the

"Reid technique."        We have already concluded trial counsel had

no duty to investigate this injury, and without that information

the suppression motion would have been baseless.                     The court of

appeals correctly concluded such a motion would not have been

successful.

    ¶37     Mr.   Pico's     second     allegation   relates    to     his   belief

that his counsel should have called an expert to challenge Ms.

Sarah    Flayter's      forensic      interview   techniques,        to   describe
D.T.'s   susceptibility       to   an   interviewer's      suggestion,       and    to

explain the significance of some of the statements D.T. made

during the interview.          Mr. Pico says "the trial court found"

that "an expert should have been consulted" on these subjects,

and that if his counsel had done so, "it would have helped the

defense case."        The relevant factual finding here is that Mr.

Pico's counsel did not introduce an expert witness to provide

testimony    on   the    identified      subjects,   a   fact    the      court     of
appeals did not challenge.            What it challenged was whether that
                                         22
                                                                                    No.     2015AP1799-CR



fact established that trial counsel should have called such an

expert, an entirely unremarkable question of law.                                          And how the

result of the trial might have changed if Mr. Pico's counsel had

presented         expert      testimony         on        these      topics         is    actually       the

opposite of a factual finding——it is, indeed, a contrafactual.

It   is    a      hypothetical           conclusion             about      a    potential       outcome

flowing        from     the        application            of     a    legal         standard       to    an

alternative set of facts.                     It is, in short, informed speculation

about a trial that never occurred.                              As such, it is not possible

for this to be a matter of fact.                               The court of appeals did not

err in choosing not to defer to the circuit court's conclusion

about the expected result of a hypothetical trial.

       ¶38     Finally,            Mr.        Pico     is        concerned           about      certain

statements         introduced            at    trial       that       he    believes        improperly

vouched      for      the     credibility            of    the       State's        witnesses.           He

asserts      that       the       circuit      court       "found"         that     trial     counsel's

failure      to    file       a    motion      in    limine          to    protect        against       such

testimony was "constitutionally deficient."                                    And he argues that,
in disagreeing with the circuit court, the court of appeals

improperly "substituted its beliefs for those of the judge who

listened to the testimony at the hearing."                                      But as we said in

both      Pitsch      and      Knight,         whether          an    attorney's          conduct        was

constitutionally              deficient         is    a    question            of   law,     not    fact.

"Listening         to     testimony"            is     essential           to       the    project       of

accurately finding facts; deciding questions of law can be done

just as well by appellate tribunals.


                                                     23
                                                                  No.     2015AP1799-CR



       ¶39     Our review confirms that the court of appeals properly

distinguished between findings of fact and conclusions of law.

Consequently, it did not usurp the circuit court's fact-finding

role    when    it   concluded     that   trial      counsel      did    not    perform

deficiently.12       Still, Mr. Pico argued that several additional

defects in his counsel's performance caused him to suffer the

ineffective assistance of counsel.                  The court of appeals wrote

an extensive and well-reasoned opinion addressing each of those

claims, and we do not believe we would provide any additional

value by repeating the good work it has already done.                          We adopt

its    reasoning     on    these   claims      as   our    own.     Because       trial

counsel's performance was not deficient, we may conclude that

Mr.    Pico    did   not   receive    ineffective         assistance      of    counsel

without       addressing    the    "prejudice"       prong   of    the     Strickland

analysis.       Strickland, 466 U.S. at 697 ("[T]here is no reason

for a court deciding an ineffective assistance claim to approach

the inquiry in the same order or even to address both components

       12
       The court of appeals did set aside an additional factual
finding while conducting this part of its review.   However, it
was justified in doing so.       The circuit court apparently
misunderstood part of trial counsel's testimony with respect to
whether Ms. Flayter should have clarified one of D.T.'s
statements.   Trial counsel testified this task was necessary,
but that it was for D.T., not Ms. Flayter, to provide the
clarification. He also said Ms. Flayter did get D.T. to explain
her ambiguous statement.    The circuit court appears to have
missed   this  testimony,   and  so   found  that   a  required
clarification had not been made.      The court of appeals is
correct that this finding was clearly erroneous because the
record unequivocally establishes that D.T.'s statement had been
properly explained.


                                          24
                                                           No.    2015AP1799-CR



of the inquiry if the defendant makes an insufficient showing on

one."); Carter, 324 Wis. 2d 640, ¶21 ("to succeed on [a] claim

of   ineffective   assistance    of    counsel,     [the   defendant]      must

satisfy both prongs of the Strickland test.").

                     B. Expert Strickland Testimony

      ¶40   At the Machner hearing, Mr. Pico called an attorney as

an expert witness on the Strickland standard "to show what a

reasonable attorney versed in the criminal law would and should

do under the circumstances at issue in this case."                   Wisconsin

Stat.   § 907.02   (2015-16)    governs    the    admissibility      of   expert

opinion testimony and provides:

      If   scientific,   technical,   or  other   specialized
      knowledge will assist the trier of fact to understand
      the evidence or to determine a fact in issue, a
      witness qualified as an expert by knowledge, skill,
      experience,   training,   or  education,  may   testify
      thereto in the form of an opinion or otherwise, if the
      testimony is based upon sufficient facts or data, the
      testimony is the product of reliable principles and
      methods, and the witness has applied the principles
      and methods reliably to the facts of the case.
§ 907.02(1)    (2015-16).      "Whether    to    admit   proffered    'expert'

testimony rests in the circuit court's discretion."                   LaCount,

310 Wis. 2d 85, ¶15 (one set of quotation marks omitted).

      ¶41   The expert's task in the Machner hearing was to opine

on how trial counsel ought to have handled Mr. Pico's defense.

Presumably, that means he was supposed to do something more than

argue that Mr. Pico's counsel should have conducted the defense

differently.    If that had been his function, he should have been
seated at counsel's table along with Mr. Pico's postconviction


                                      25
                                                                     No.       2015AP1799-CR



attorney, not in the witness box.                 We presume his role was not

duplicative.             Nor   was    his   purpose    to    provide       a    historical

recitation of facts relating to trial counsel's conduct of Mr.

Pico's case.            Nor was he there to explain historical facts that

the    court      was    incapable     of   understanding      on    its       own.     That

leaves only one role for the expert here——informing the court

that, in his judgment, Mr. Pico's counsel did not perform as a

reasonable attorney should have under those circumstances.

       ¶42       So the question we must answer is whether there is

room in a Machner hearing for an expert witness's judgment on

trial counsel's performance.                Expert testimony is admissible to

address questions of fact, not law.                     This is so because "the

only 'expert' on domestic law is the court."                        See Wis. Patients

Comp. Fund v. Physicians Ins. Co. of Wis., Inc., 2000 WI App

248, ¶8 n.3, 239 Wis. 2d 360, 620 N.W.2d 457 (input from experts

regarding         an    attorney's      ethical   obligations         is       unnecessary

because such obligations are questions of law reviewed de novo

by    the    court;       compiling     cases);   see       also    United      States    v.
Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991) ("As a general

rule        an     expert's          testimony    on        issues      of        law    is

inadmissible . . . . [A]lthough an expert may opine on an issue

of fact within the jury's province, he may not give testimony

stating ultimate legal conclusions based on those facts."); Itek

Corp. v. Chicago Aerial Indus., Inc., 274 A.2d 141, 143 (Del.

1971) ("Testimony from an expert is inadmissible if it expresses

the expert's opinion concerning applicable domestic law."); In
re Estate of Ohrt 516 N.W.2d 896, 900 n.1 (Iowa 1994) ("Experts,
                                             26
                                                                             No.     2015AP1799-CR



no matter how well qualified, generally should not be permitted

to give opinions on questions of domestic law."); Jackson v.

State Farm Mut. Auto. Ins. Co., 600 S.E.2d 346, 355 (W. Va.

2004) (quoting 32 C.J.S. Evidence § 634, at 503-04 (1996)) ("As

a general rule, an expert witness may not give his [or her]

opinion on a question of domestic law [as opposed to foreign

law] or on matters which involve questions of law, and an expert

witness cannot instruct the court with respect to the applicable

law of the case . . . ." (alterations in original)).

       ¶43        The court's status as the only expert on domestic law

is     not        a    descriptive       statement,          but       a     normative          one.

Interpreting and applying the law to the facts of a particular

case    is    the       judiciary's      responsibility,           a       responsibility        it

shares       with      no     other   when   acting     in    its      judicial          capacity.

Gabler       v.       Crime    Victims    Rights      Bd.,    2017          WI 67,       ¶37,    376

Wis. 2d 147, 897 N.W.2d 384 ("No aspect of the judicial power is

more fundamental than the judiciary's exclusive responsibility

to exercise judgment in cases and controversies arising under
the    law.");         see    also    Operton    v.   LIRC,    2017         WI 46,       ¶73,    375

Wis. 2d 1, 894 N.W.2d 426 (R. Grassl Bradley, J., concurring)

(indicating           that     "the   court's    duty    to    say         what    the    law   is"

constitutes a "core judicial function"); In re Appointment of

Revisor, 141 Wis. 592, 598, 124 N.W. 670 (1910) (stating that

"it    is    the       exclusive      function   of     the   courts         to    expound       the

laws").        In the context of a Machner hearing, that exclusive

responsibility encompasses the exercise of its judgment on the
reasonableness of counsel's performance:                           "[A] court . . . must
                                                27
                                                                        No.    2015AP1799-CR



judge the reasonableness of counsel's challenged conduct on the

facts of the particular case . . . ."                         Strickland, 466 U.S. at

690    (emphasis      supplied).           As   we    discussed    above,      this     is    a

question of law, not fact.                  Pitsch, 124 Wis. 2d at 634 ("The

questions       of    whether      counsel's         behavior     was       deficient    and

whether it was prejudicial to the defendant are questions of

law, and we do not give deference to the decision of the circuit

court.").

       ¶44   The      court    can,    and       must,    reserve       to    itself     the

exercise of this responsibility in every case.                              And when "the

court . . . is able to draw its own conclusions without the aid

of expert testimony, 'the admission of such testimony is not

only    unnecessary      but       improper.'"           Racine    Cty.       v.   Oracular

Milwaukee, Inc., 2010 WI 25, ¶28, 323 Wis. 2d 682, 781 N.W.2d 88

(quoting Cramer v. Theda Clark Mem'l Hosp., 45 Wis. 2d 147, 151,

172 N.W.2d 427 (1969)).               Therefore, an expert's judgment about

the    reasonableness         of     how    counsel      handled        the   defense        is

superfluous not because he has no insights on the matter, but
because his opinion is unnecessary as a matter of law.

       ¶45   Consequently, we hold that expert testimony about the

"reasonableness"         of     counsel's            performance       is     inadmissible

because it addresses a question on which the court is the only

expert.      This is not a matter of first impression in this state.

Faced with the same question we are addressing here, the court

of    appeals    in    State    v.    McDowell         said    "that    no    witness    may

testify as an expert on issues of domestic law" such as whether
trial counsel rendered effective assistance.                           2003 WI App 168,
                                                28
                                                                   No.    2015AP1799-CR



¶62 n.20, 266 Wis. 2d 599, 669 N.W.2d 204, aff'd, 2004 WI 70,

272 Wis. 2d 488, 681 N.W.2d 500.               We are further persuaded this

is a sound statement of the law for the reasons given by the

Eleventh Circuit Court of Appeals:

      [T]he reasonableness of a strategic choice is a
      question of law to be decided by the court, not a
      matter subject to factual inquiry and evidentiary
      proof.   Accordingly,  it   would  not   matter if   a
      petitioner could assemble affidavits from a dozen
      attorneys swearing that the strategy used at his trial
      was unreasonable. The question is not one to be
      decided by plebiscite, by affidavits, by deposition,
      or by live testimony. It is a question of law to be
      decided by the state courts, by the district court,
      and by this Court, each in its own turn.
Provenzano v. Singletary, 148 F.3d 1327, 1332 (11th Cir. 1998).

      ¶46    Our   review    of    the    record       confirms   that    Mr.   Pico's

expert was "judg[ing] the reasonableness of counsel's challenged

conduct on the facts of the particular case."                       See Strickland,

466   U.S.    at   690.     Upon     introducing        the    expert's   testimony,

postconviction counsel frankly acknowledged the expert witness

would        testify        to      "what          a         reasonable      criminal
attorney . . . should and should not" do.                       The expert witness

proceeded to do that very thing, opining (in part) that:                        (1) an

attorney who has been put on notice of an injury should "get the

[medical] records" and should "chase the records if you know

they're there"; (2) further investigation into the injury and

its potential impacts would have been beneficial to the case;

(3)   knowledge     of    the     brain   injury       and    testimony    about   the

resulting impact could have impacted strategic decisions; (4)
experts should have been called to review Detective Rich's taped

                                          29
                                                               No.   2015AP1799-CR



interview of Mr. Pico and Ms. Flayter's forensic interview of

D.T.; (5) there generally would not have been any downside to

seeking expert review of or obtaining the good touch/bad touch

materials D.T. learned in school; and (6) trial counsel should

have objected to certain statements that amounted to "witness

vouching."      Ultimately, the expert witness asserted that he did

not   believe    trial    counsel   provided      constitutionally      adequate

representation.

      ¶47    When we analyzed Mr. Pico's claim that the court of

appeals usurped the circuit court's fact-finding role, supra, we

addressed some of the very topics on which the expert witness

provided testimony.        We said they presented questions of law,

and     there   is   no   reason    to    reconsider    that     conclusion     in

determining whether it was appropriate for Mr. Pico's expert to

opine on them.        What trial counsel should or should not have

done is not a question of fact.                Nor is the soundness of his

strategic or tactical decisions.              And as we observed above, the

likely      effect   of   those     decisions      on   the     outcome    of   a
hypothetical trial is informed speculation, not a statement of

fact.     Because this testimony addressed questions of domestic

law, it was inadmissible.           We conclude that Strickland expert

testimony is admissible in the Machner context, but only to the

extent the expert focuses on factual matters and does not offer

his opinion on the reasonableness of trial counsel's conduct or

strategy.




                                         30
                                                       No.   2015AP1799-CR



      C.     Mr. Pico Is Not Entitled To A New Sentencing Hearing

       ¶48    Mr. Pico asserts that the circuit court violated his

right against self-incrimination by increasing the severity of

his    sentence    because   he   maintained   his   innocence   at   the

sentencing hearing.13        We review a sentencing decision for an




       13
       Mr. Pico also asserts that his counsel "was ineffective
for failing to object" to the sentencing court's statements
related to his maintenance of innocence at sentencing. Mr. Pico
does not develop any ineffective assistance of counsel claim as
to this issue; however, because we conclude that the sentencing
court did not err, Mr. Pico's counsel could not have been
ineffective for not having objected.


                                    31
                                                  No.   2015AP1799-CR



erroneous exercise of discretion.14   State v. Harris, 2010 WI 79,

¶30, 326 Wis. 2d 685, 786 N.W.2d 409.   Such an error occurs if a

court "imposes its sentence based on or in actual reliance upon

clearly irrelevant or improper factors."   Id.   To establish such


     14
       The State says Mr. Pico waived this issue by not filing a
cross-appeal from the circuit court's order on the motion for
postconviction relief, which granted him a new trial and vacated
his sentence.     The State says a cross-appeal was necessary
because the circuit court vacated the sentence not because of a
sentencing error, but because it concluded the conviction was
constitutionally unsound.    Regardless of the circuit court's
reasoning, the result was an order vacating the sentence.       A
party appeals from a written order, not a circuit court's
reasoning. See Wis. Stat. § 809.10(1)(b)2 (2015-16) (the notice
of appeal shall identify "the judgment or order from which the
person filing the notice intends to appeal and the date on which
it was entered."); see also Neely v. State, 89 Wis. 2d 755, 758,
279 N.W.2d 255 (1979) (per curiam) (explaining that "[t]he word
decision, as used in the statutes and the rules, refers to the
result (or disposition or mandate) reached by the court of
appeals.");    Ramsthal Advert. Agency v. Energy Miser, Inc., 90
Wis. 2d 74, 75, 279 N.W.2d 491 (Ct. App. 1979) ("An order, to be
appealable, must be in writing and filed."). A cross-appeal is
necessary only when the respondent seeks a modification of the
order from which an appeal is taken: "A respondent who seeks a
modification of the judgment or order appealed from or of
another judgment or order entered in the same action or
proceeding shall file a notice of cross-appeal . . . ."      Wis.
Stat.   § 809.10(2)(b)   (2015-16).      Mr.   Pico   wanted   no
modification; to the contrary, he wanted the court of appeals to
affirm the vacation of his sentence.      His "sentencing error"
argument is an alternative basis for affirming that part of the
circuit court's order.    On appeal, a court may "'examine all
rulings to determine whether they are erroneous and, if
corrected, whether they would sustain the judgment or order
which was in fact entered.'" Auric v. Cont'l Cas. Co., 111 Wis.
2d 507, 516, 331 N.W.2d 325 (1983) (citation omitted).     If Mr.
Pico were right about the sentencing court's error, correcting
it would sustain the circuit court's vacation of his sentence.
Therefore, no cross-appeal was necessary.


                               32
                                                                      No.       2015AP1799-CR



error,    the    defendant       must   prove       "by       clear    and       convincing

evidence,       that    the     sentencing      court          actually         relied    on

irrelevant or improper factors."              State v. Alexander, 2015 WI 6,

¶17, 360 Wis. 2d 292, 858 N.W.2d 662.                     This requires that the

defendant     establish        both   that    the     factor         was    improper      or

irrelevant and that the court relied on it.                     Id., ¶¶18-27.

    ¶49      The Fifth Amendment          guarantees a criminal defendant

the right against self-incrimination.                 U.S. Const. amend V ("No

person . . . shall be compelled in any criminal case to be a

witness     against     himself . . . .").            This        right         extends    to

sentencing, although a defendant may waive his Fifth Amendment

right     against      self-incrimination       in        a    bid    for       a     lighter

sentence.       See    Scales v. State, 64 Wis. 2d 485, 496-97, 219

N.W.2d 286      (1974)        (The    court   may         consider         "a       posttrial

confession of guilt and an expression of remorse" "in mitigation

of a sentence.").         The failure to express remorse, however, can

be used at sentencing only if it is one amongst other factors,

and it receives no undue consideration:

    A defendant's attitude toward the crime may well be
    relevant in considering these things [i.e., Gallion-
    type factors15].   In this case we believe the trial
    court considered a variety of factors, giving no undue
    or overwhelming weight to any one in particular. The
    sentence imposed was well within the maximum for which
    the defendant might have been sentenced, and while it
    is evident that the defendant's failure to admit his
    guilt and his lack of remorse were factors in the


    15
       See State v. Gallion, 2004 WI 42, 270 Wis. 2d 535, 678
N.W.2d 197.


                                         33
                                                             No.     2015AP1799-CR


    sentencing decision, we do not believe it was improper
    or an abuse of discretion.
State v. Baldwin, 101 Wis. 2d 441, 459, 304 N.W.2d 742 (1981);

see also Williams v. State, 79 Wis. 2d 235, 239, 255 N.W.2d 504

(1977) (observing that circuit courts commit reversible error

when they "[give] undue and almost overwhelming weight to the

defendant's refusal to admit guilt.").

    ¶50     The    transcript    from    Mr.    Pico's    sentencing      hearing

reflects that the court considered multiple factors——such as Mr.

Pico's background, his family and support network, his medical

history,    the    seriousness    of    the    offense,    the     presentencing

report,    the    impact   on   the    community,   and     the    risk   of   re-

offending——in formulating the sentence.16                It also reflects the

court's reference to Mr. Pico's lack of remorse:

         A part of the problem that you have is how you're
    gonna go forward and you express yourself, and I
    believe you're to a degree very sincere. To a degree
    I'm not so sure you're willing to do what you need to
    do to find your way back into a life closer to normal.

         What I mean when I say that is acknowledging your
    conduct before this forum, before your family, before
    [D.T.'s family] in order to allow your children to
    hear it and to know what you've done is important, and
    I will consider whether or not you demonstrate remorse
    as part of my sentence.

    . . . .

    16
       A circuit court must consider three main factors at
sentencing: (1) the gravity of the offense; (2) the defendant's
character; and (3) the need to protect the public.      State v.
Alexander, 2015 WI 6, ¶22, 360 Wis. 2d 292, 858 N.W.2d 662. The
circuit court may also consider numerous secondary factors. See
id.


                                        34
                                                                        No.      2015AP1799-CR


       I'm offended that you don't have the courage to
       recognize, and don't give me a half story of I touched
       her but not enough, I didn't touch her the way she
       said.   I don't accept it, Mr. Pico.    That's half a
       loaf.
       ¶51   Mr. Pico says this commentary is similar to Scales, in

which we concluded the circuit court had improperly relied on

the defendant's lack of remorse in imposing sentence.                               There, we

were concerned with the circuit court's statement that "'[i]t is

my judgment that until you demonstrate some remorse, until you

acknowledge        your   responsibility         for    the     crime       that    you    have
committed,         probation     is     not       in     order        and        efforts     at

rehabilitation will come to naught.                    It is for that reason that

it is my judgment . . . that I can do nothing but order your

incarceration . . . ."           Scales, 64 Wis. 2d at 494-95.                       We said

"that fact alone [the failure to demonstrate remorse] cannot be

used    to    justify       incarceration         rather       than     probation,"         and

because      the    court     identified         no    other    basis         for    imposing

incarceration, we reasoned that the "the procedure utilized at

sentencing     was    coercive        and   in    derogation          of    Scales'       Fifth

Amendment rights."          Id. at 496-97.

       ¶52   Mr.     Pico's    comparison        to    Scales     is       not    apt.      The

circuit court in Scales explicitly linked the defendant's lack

of remorse to the decision to impose incarceration instead of

probation.         Here, there is quite obviously no explicit link

between Mr. Pico's lack of remorse and a harsher sentence.                                  Nor

is   there    an    implicit     link.        The      circuit        court's       operative

statement on this subject was simply "I will consider whether or
not you demonstrate remorse as part of my sentence."                                Taken at

                                            35
                                                                                No.     2015AP1799-CR



face value, that is an entirely appropriate and unremarkable

statement——remorse is a proper factor to consider in developing

a sentence.         And as long as the court honors the principles of

Baldwin      and    Williams,       so       is   lack       of     remorse.           The    circuit

court's statement indicates it may have addressed remorse in one

of   three    ways.            First,    it    might         have      applied    no    mitigating

factor in recognition that Mr. Pico had expressed no remorse.

Second, it might have used Mr. Pico's lack of remorse as the

north star in developing his sentence.                            Last, the court may have

considered Mr. Pico's lack of remorse as one factor amongst many

in the exercise of its sentencing discretion.                                         Of the three

possibilities, only the second would be inappropriate.                                       There is

a    strong    public          policy    against         interfering           with     the        trial

court's sentencing discretion, and the trial court is presumed

to have acted reasonably.                    State v. Wickstrom, 118 Wis. 2d 339,

354,    348    N.W.2d 183          (Ct.       App.      1984).            It     is    Mr.     Pico's

responsibility            to    demonstrate            the     circuit         court        used    its

discretion         erroneously          in    considering           his    lack        of    remorse.
State v. Lechner, 217 Wis. 2d 392, 418, 576 N.W.2d 912 ("When a

criminal      defendant          challenges          the      sentence         imposed        by     the

circuit      court,       the     defendant        has        the      burden     to    show       some

unreasonable         or    unjustifiable           basis          in    the    record        for    the

sentence at issue.").

       ¶53    Mr. Pico says his proof is that the circuit court

"intimated it might" "send[] him home that day" if he confessed

at sentencing.            The circuit court intimated no such thing.                                 Its
only mention of anything even remotely close to that concept was
                                                  36
                                                                 No.     2015AP1799-CR



its reference to a letter from D.T. and her family indicating

they    might     agree    that    a     "time   served"      sentence     would     be

acceptable if Mr. Pico admitted what he had done to D.T.                             In

commenting on that letter, the court stated:

            Now, they [D.T.'s family] wanted to go so far as
       to hinge as to whether or not you'll be in the
       community versus whether or not you'll be housed in
       prison, and our system is more complicated than that.
       I have more things to consider in reaching that
       decision.   Your lawyer referenced the Gallion factors
       and other factors that as a lawyer I have to——as a
       judge I have to consider.   I'll look at all those in
       reaching a conclusion.
       ¶54   Not only does this commentary not support Mr. Pico's

position,    it    does    the    opposite.      This    passage       reflects      the

sentencing court's awareness of the totality of factors it was

required to consider——and did consider——in ultimately imposing a

bifurcated sentence of six years imprisonment followed by ten

years   extended     supervision——a        sentence     far   less     than    the   60

years of imprisonment he faced upon conviction.                    See Wis. Stat.

§§ 948.02(1)(e)      and    939.50(3)(b).         We    conclude       there   is    no

evidence the circuit court imposed a longer sentence on Mr. Pico
because of his continued assertion of innocence.                     Therefore, Mr.

Pico is not entitled to a new sentencing hearing.

                                   IV.    CONCLUSION

       ¶55   We conclude that Mr. Pico's trial counsel did not

perform deficiently within the meaning of Strickland.                    We also

conclude that expert testimony at a Machner hearing regarding

the reasonableness of trial counsel's performance is not
admissible.       Finally, because Mr. Pico did not demonstrate that

                                          37
                                                          No.   2015AP1799-CR



the circuit court improperly relied on his lack of remorse in

fashioning his sentence, he is not entitled to resentencing.

    By   the   Court.—The   decision   of   the   court    of   appeals   is

affirmed.




                                  38
                                                                          No.    2015AP1799-CR.rgb


    ¶56     REBECCA GRASSL BRADLEY, J.                       (concurring).           I join the

majority    but    write     separately           to    clarify       part        III.B,     which

addresses expert Strickland testimony.1                            The majority says that

Strickland    expert       testimony         is    inadmissible             at     the    Machner

hearing except "to the extent the expert focuses on factual

matters and does not offer his opinion on the reasonableness of

trial     counsel's"     performance.2                 Majority           op.,     ¶47.        This

limitation could be misinterpreted as a total prohibition on

such testimony.        It is not.

    ¶57     The majority stops short of explaining what it means

by "factual matters" at Machner hearings.                            I provide additional

explanation       to   avoid     any    confusion.                 When    a     circuit     court

determines    the      testimony        of    a        Strickland          expert      would    be

helpful, the expert may testify as to what actions a reasonable

attorney could take in the same or similar circumstances.                                    These

include     "factual       matters"       such          as     alternate           actions     the

defendant's    lawyer      could       have   taken          and     different       strategies

defense counsel could have employed.                     The expert lawyer may also
testify     regarding      the     existence            of     alternative           strategies

available    to    defense     counsel        under          the    particular        facts     and




    1
         Strickland v. Washington, 466 U.S. 668 (1984).
    2
         State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App.
1979).


                                              1
                                                                     No.   2015AP1799-CR.rgb


circumstances of the case.3            However, the expert may not testify

as   to    the    ultimate      question   of      law    the       circuit      court   must

decide.      Specifically, the expert may not offer an opinion on

whether     the    trial     lawyer   performed          deficiently.            That    is    a

question of law left to the circuit court.

      ¶58    Although        expert   criminal       lawyer          testimony      is     not

required at a            Machner   hearing,     in certain cases the circuit

court may perceive this testimony to be helpful.                                "Whether to

admit proffered 'expert' testimony rests in the circuit court's

discretion."        State v. LaCount, 2008 WI 59, ¶15, 310 Wis. 2d 85,

750 N.W.2d 780.           In most cases, the circuit court will not need

expert lawyer testimony to decide the legal questions——it will

simply apply Strickland to the facts and circumstances presented

at   the    Machner        hearing.     However,          if    a    circuit      court       is

unfamiliar        with    the   practice      of    criminal         law    or    the     case

presents     factual       features   unfamiliar          to    even       an   experienced

judge, Strickland expert testimony at the Machner hearing would



      3
       While expert testimony on issues of law generally is
inadmissible, the standard of care applicable to attorneys is
not an issue of law but one of fact.     For example, in legal
malpractice cases in Wisconsin, not only is expert testimony
admissible, it is generally required to establish a breach of
the standard of care.   See, e.g., Helmbrecht v. St. Paul Ins.
Co., 122 Wis. 2d 94, 112, 362 N.W.2d 118 (1985) ("Expert
testimony is generally necessary in legal malpractice cases to
establish the parameters of acceptable professional conduct,
given the underlying fact situation."); Pierce v. Colwell, 209
Wis. 2d 355, 362-63, 563 N.W.2d 166 (Ct. App. 1997) (holding
plaintiff "was obligated to present expert testimony to sustain
his claim that [lawyer's] alleged negligence caused injury or
damage").


                                           2
                                               No.   2015AP1799-CR.rgb


be helpful and the circuit court retains the discretion to hear

it.   See LaCount, 310 Wis. 2d 85, ¶15; Wis. Stat. § 907.02.

      ¶59   I respectfully concur.

      ¶60   I am authorized to state that Justice DANIEL KELLY

joins this concurrence.




                                     3
                                                                No.   2015AP1799-CR.ssa


    ¶61     SHIRLEY      S.        ABRAHAMSON,      J.     (dissenting).       In   an

interview      with    law    enforcement,         the   defendant    gave   equivocal

statements regarding whether he touched the vagina of D.T., an

eight-year-old girl.               Given the circumstances of the instant

case, advancing a reasonable doubt defense instead of properly

investigating the defendant's frontal lobe injury amounted to

deficient performance.               In my view, a reasonable probability

exists    that    but        for    trial     counsel's     failure     to   properly

investigate the defendant's frontal lobe injury, the result of

the defendant's trial would have been different.

    ¶62     Accordingly, I dissent.1

                                              I

    ¶63     In Strickland v. Washington, the United States Supreme

Court    had    this    to     say     with       regard   to   counsel's    duty   to

investigate:

    [S]trategic choices made after less than complete
    investigation are reasonable precisely to the extent
    that reasonable professional judgments support the
    limitations on investigation. In other words, counsel
    has a duty to make reasonable investigations or to
    make a reasonable decision that makes particular
    investigations unnecessary.    In any ineffectiveness
    case, a particular decision not to investigate must be
    directly assessed for reasonableness in all the
    circumstances, applying a heavy measure of deference
    to counsel's judgments.
Strickland v. Washington, 466 U.S. 668, 690-91 (1984).




    1
       I agree with Justice Rebecca Grassl Bradley's concurrence
insofar as it clarifies the "factual matters" about which an
attorney expert may testify during a Machner hearing.


                                              1
                                                                     No.   2015AP1799-CR.ssa


    ¶64        Put    another     way,       "[c]ounsel     must      either    reasonably

investigate the law and facts or make a reasonable strategic

decision       that    makes      any    further       investigation        unnecessary."

State     v.    Domke,      2011        WI    95,    ¶41,      337    Wis. 2d 268,       805

N.W.2d 364.          The reasonableness of counsel's decisions is judged

in the context of the circumstances as they existed at the time

counsel made those decisions.                       Strickland, 466 U.S. at 689;

State v. Felton, 110 Wis. 2d 485, 502-03, 329 N.W.2d 161 (1983).

    ¶65        The    following      facts      were    known    to    the     defendant's

trial   counsel        at   the   time       counsel    made    the    decision    not    to

further    investigate         the      defendant's      frontal       lobe    injury    and

instead pursue a reasonable doubt defense:

          • The defendant was interviewed by a detective four days

               after the defendant visited his daughter's classroom.

               D.T. was a classmate of the defendant's daughter.

          • During that interview, the detective employed the Reid

               technique, a technique that involves law enforcement

               officials lying to the interviewee by claiming to have
               strong incriminating evidence that they do not in fact

               possess in order to induce the interviewee to disclose

               factually       accurate        details      about      the     events     in

               question.

          • Pursuant to the Reid technique and without identifying

               the victim, the detective told the defendant that a

               student in his daughter's class had accused him of

               touching her inappropriately, that there were video
               cameras in the classroom, that male DNA had been found

                                               2
                                                           No.    2015AP1799-CR.ssa


  on the victim's clothing in the area she said she was

  touched,        and      that      another       student        had    partially

  substantiated the victim's allegation.                          Other than the

  fact     that         the     defendant          had     been        accused    of

  inappropriately touching a student, none of what the

  detective told the defendant was true.

• When the detective asked if anything the detective had

  just     said      made      any       sense     to    the     defendant,      the

  defendant       responded          by    saying,       "Yeah,    I    remember."

  Although the detective never identified D.T. as the

  victim,      the      defendant         provided       D.T.'s    name     to   the

  detective and described how he "tickled" and massaged

  D.T.'s leg.

• Further questioning by the detective resulted in the

  defendant       acknowledging            that     at     some     point      while

  tickling and massaging D.T.'s leg, he had moved his

  hand    under      her      pants.         The   defendant       claimed       that

  moving       his       hand        under       D.T.'s        pants     was     not
  intentional.

• The    detective       told     the      defendant       that    D.T.     claimed

  that    he   touched         her       vagina    twice.         The    defendant

  responded, "I don't recall.                      I don't.       I don't know.

  I didn't.        I don't know, sir.                   I don't remember that

  happening, but——."              The detective followed up, "Is it

  possible?"         The defendant responded, "[Y]eah."                          The

  detective asked, "Do you know why?" and the defendant
  answered,        "I      have      no    idea.          I'm     not     sexually

                                     3
                                                   No.   2015AP1799-CR.ssa


  repressed.         I got a good sex life.          I have kids.          I

  wasn't thinking along those lines at all.                  I was just

  playing."

• In response, the detective accused the defendant of

  having intentionally put his hand down D.T.'s pants

  twice.      The defendant responded by saying "I don't

  know.       I   don't——I    don't      recall   ever   doing      it   the

  second time, but it shouldn't have happened the first

  time, right."

• The detective then suggested that "[o]nce you walked

  out    of   that    class   I    bet   you   were——well,     you       were

  probably just sick to your stomach."                   The defendant

  responded "Yes."

• Upon first meeting the defendant, trial counsel became

  aware of the defendant's brain injury.                  The defendant

  wears an eyepatch, and he explained to trial counsel

  that he suffers from double vision as a result of a

  traumatic brain injury to his frontal lobe caused by a
  serious     motorcycle      accident     that   occurred     20    years

  before the events giving rise to the instant case.

• The defendant told trial counsel that he had fully

  recovered from the accident, and neither the defendant

  nor his family told counsel that they had observed any

  behavior on the defendant's part that would indicate

  that     the    defendant's       brain      injury    affected        the

  defendant's behavior.



                               4
                                                                   No.   2015AP1799-CR.ssa


          • Trial counsel, without bothering to obtain any of the

            defendant's medical records or consult with an expert

            knowledgeable         about     the      connection          between        brain

            trauma       and   human      behavior,        chose     not    to     further

            investigate because trial counsel did not observe any

            ongoing      symptoms      that    he    believed        related       to    the

            defendant's brain injury.

     ¶66    Under     these      circumstances,        I     conclude       that     trial

counsel's decision not to further investigate the defendant's

frontal    lobe    injury      and   instead      pursue      a     reasonable      doubt

defense constitutes deficient performance.

     ¶67    First, as would seem obvious from the recitation of

facts above, a reasonable doubt defense was doomed to failure.

Asked about whether the defendant had twice touched the vagina

of an eight-year-old unidentified girl in her classroom during

school    just    four    days    prior,       the   defendant           identified       the

victim, acknowledged "tickling" her leg, and "[didn't] recall,"

or "[didn't] know" whether he had touched her vagina or not, but
said that if he did, he did not do so intentionally.                                     The

majority is silent regarding the reasonableness of pursuing a

reasonable doubt defense in light of this damning evidence.2




     2
       The majority does, however, refer to the defendant's
equivocation as "nervousness" or being "flustered."    Majority
op., ¶27.    I find it unlikely that nervousness would cause
someone to forget whether or not they had twice touched the
vagina of an eight-year-old girl in her classroom during school
just four days earlier.


                                           5
                                                                 No.    2015AP1799-CR.ssa


     ¶68    Second,        trial     counsel's       decision     to         not    conduct

further    investigation           into   the     defendant's    brain        injury      was

unreasonable under the circumstances.                      Both state and federal

courts have found head injuries to be "red flags" that give rise

to a duty for counsel to investigate further for neurological

damage that may impact the client's case.3

     ¶69    In    the      instant    case,       trial    counsel     knew        that   the

defendant suffered from double vision as a result of a traumatic

brain injury to his frontal lobe caused by a serious motorcycle

accident.        Rather than consult with a neurologist about the

effects of the defendant's brain trauma, or even obtain the

defendant's medical records, trial counsel instead stopped his

investigation after being told by the defendant and his family

that they did not notice anything abnormal about the defendant's

behavior.        In   my     view,   trial       counsel   did   not     do    enough      to

discharge   his       duty    to    adequately      investigate        the    defendant's

frontal lobe injury and its impact on the defendant's case.

     ¶70    Given the impossible odds of a successful reasonable
doubt defense, trial counsel's performance was not reasonable




     3
       See Ellen G. Koenig, A Fair Trial: When the Constitution
Requires Attorneys to Investigate Their Clients' Brains, 41
Fordham Urb. L.J. 177, 211-12 (2013) (collecting cases); Richard
E. Redding, The Brain-Disordered Defendant:     Neuroscience and
Legal Insanity in the Twenty-First Century, 56 Am. U. L. Rev.
51, Appendix (2006) (listing 45 cases in which counsel was
deemed ineffective for failing to investigate when counsel
either knew that the client suffered a traumatic brain injury or
would have learned that information by conducting a proper
investigation).


                                             6
                                                       No.    2015AP1799-CR.ssa


under      prevailing   professional      norms     and      was    therefore

constitutionally deficient.4

                                   II

     ¶71     In   addition    to   proving    that        trial     counsel's

performance was constitutionally deficient, the defendant must

also prove that he was prejudiced by trial counsel's deficient

performance.      This requires the defendant to "show that there is

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 under

the Strickland prejudice prong is a probability sufficient to

undermine confidence in the outcome."             Winnebago Cty. v. J.M.,

2018 WI 37, ¶49, 381 Wis. 2d 28, 911 N.W.2d 41.5

     ¶72     I conclude that the defendant has shown prejudice in

the instant case.       Had trial counsel properly investigated the

defendant's frontal lobe injury, he would have learned that the

defendant suffered from frontal lobe syndrome.                Trial counsel

would have learned that as a result of the defendant's frontal
lobe injury, the defendant suffered from a significant decrease

in   IQ;    deficits    to   cognitive,    emotional,        and   behavioral

functioning; and abnormal impulsivity.        Trial counsel also would


     4
         Strickland v. Washington, 466 U.S. 668, 688 (1984).
     5
       See also Winnebago Cty. v. J.M., 2018 WI 37, ¶49, 381
Wis. 2d 28, 911 N.W.2d 41 ("This statement of the prejudice
prong corresponds with another oft-quoted statement from
Strickland about the prejudice prong, namely that the defendant
was prejudiced if he or she was deprived of a fair trial whose
result is reliable.").


                                    7
                                                                     No.    2015AP1799-CR.ssa


have learned that symptoms of frontal lobe syndrome include the

tendency        to    not    read     social    cues      well.     Had        trial   counsel

consulted a doctor regarding the defendant's brain injury and

its symptoms, he would have realized (and the defendant's family

would      have      corroborated)          that,    consistent     with       frontal       lobe

syndrome, the defendant shuts down when faced with frustration,

and    often      gives      in   to    what    others     want     in     order      to    avoid

confrontation.

       ¶73      Trial counsel's failure to properly investigate the

defendant's frontal lobe injury prejudiced the defendant in at

least two ways.

       ¶74      First, the information that would have been obtained

through a proper investigation would have supported a plea of

not guilty by reason of mental disease or defect.                                    Given how

disastrous            a     reasonable        doubt       defense        was        under     the

circumstances, pleading not guilty by reason of mental disease

of defect may have been the only reasonable strategy to pursue.

       ¶75      Second,       even     if    trial    counsel     chose        to    advance    a
reasonable doubt defense, trial counsel should have presented

evidence        of    the     defendant's       frontal      lobe    syndrome          and    its

symptoms to mitigate the effect of the inculpatory statements

made       to   the       detective    during       the   interview.           Coupled       with

testimony about the unreliable nature of the Reid technique and

its likelihood of producing false confessions,6 the defendant



       6
       The defendant presented expert testimony to this effect at
the Machner hearing.


                                                8
                                                              No.   2015AP1799-CR.ssa


could have significantly mitigated the effect of his equivocal

statements regarding whether he had inappropriately touched D.T.

                                          III

    ¶76    As our understanding of the connection between brain

trauma and criminal behavior develops, defense attorneys must be

on increased alert for red flags indicating neurological damage

that could have an impact on their clients' cases.                               In the

instant   case,     the   defendant's          trial    counsel     knew    that    the

defendant suffered a traumatic brain injury to his frontal lobe

but failed to properly and adequately investigate whether and to

what extent that trauma affected the defendant's case.                            Trial

counsel's failure to properly investigate the defendant's brain

injury prejudiced the defendant by causing him to argue an ill-

fated reasonable doubt defense that was unreasonable under the

circumstances.

    ¶77    I   would      conclude    that      the     defendant    succeeded       in

proving his claim of ineffective assistance of counsel and is

entitled to a new trial.
    ¶78    For the foregoing reasons, I dissent.

    ¶79    I   am   authorized       to    state       that   Justice      ANN    WALSH

BRADLEY joins this dissent.




                                           9
    No.   2015AP1799-CR.ssa




1
