                                                                   2018 WI 53

                  SUPREME COURT              OF       WISCONSIN
CASE NO.:               2016AP897-CR
COMPLETE TITLE:         State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Lamont Donnell Sholar,
                                  Defendant-Appellant-Petitioner.

                               REVIEW OF DECISION OF THE COURT OF APPEALS
                              Reported at 377 Wis. 2d 337, 900 N.W.2d 872
                                          (2017 – unpublished)

OPINION FILED:          May 18, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          February 23, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Milwaukee
   JUDGE:               Rebecca F. Dallet and Thomas J. McAdams

JUSTICES:
   CONCURRED:
   DISSENTED:           ABRAHAMSON, J., dissents (opinion filed).
   NOT PARTICIPATING:

ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed        by   and   an     oral   argument   by    Hannah   Schieber    Jurrs,
assistant state public defender.


       For the plaintiff-respondent, there was a brief filed by
Lisa    E.F.        Kumfer,    assistant   attorney     general,    and    Brad   D.
Schimel, attorney general.              There was an oral argument by Lisa
E.F. Kumfer.
                                                                          2018 WI 53
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.       2016AP897-CR
(L.C. No.    2011CF4807)

STATE OF WISCONSIN                              :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,                                    FILED
      v.
                                                                  MAY 18, 2018
Lamont Donnell Sholar,
                                                                     Sheila T. Reiff
                                                                  Clerk of Supreme Court
              Defendant-Appellant-Petitioner.




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



      ¶1      REBECCA      GRASSL   BRADLEY,   J.     Lamont      Donnell       Sholar

seeks review of the court of appeals decision1 affirming the

circuit court's2 order ruling that his trial counsel's failure to


      1
       State v. Sholar, No. 2016AP897-CR, unpublished slip op.
(Wis. Ct. App. June 20, 2017) ("Sholar II").
      2
       The Honorable Thomas J. McAdams, Milwaukee County Circuit
Court, presided over the Machner hearing and entered the order
vacating one of Sholar's six convictions. See State v. Machner,
92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).    The Honorable
Rebecca F. Dallet, Milwaukee County Circuit Court, presided over
the jury trial and entered the order denying Sholar's
postconviction motion.
                                                                                   No.    2016AP897-CR



object       to    an       exhibit   sent      to       the    jury    during       deliberations

constituted ineffective assistance only with respect to one of

the six counts for which he was convicted.                               He contends that his

trial counsel's ineffective assistance should result in vacatur

of   all     six       of    his    convictions.               He    also    asserts      the     State

forfeited          its      right     to    argue        the        prejudice      prong     of    the

ineffective assistance test at his Machner hearing because the

State did not petition this court for review after the court of

appeals' original decision remanding for a Machner hearing.3                                         We

affirm.

       ¶2         We     hold      that    circuit        courts        reviewing         claims    of

ineffective            assistance          of    counsel            following       multiple-count

trials may conclude that deficient performance prejudiced only

one of the multiple convictions.                          Strickland v. Washington, 466

U.S. 668, 695-96 (1984), clearly contemplates such a result and

does       not    require       reversal        on   all       counts       when    the    prejudice

proven affected only a single count.                                We further hold the State

did not forfeit its right to challenge the prejudice prong of
the ineffective assistance test when it did not petition this

court for review following the court of appeals' decision in

Sholar I.          The issue decided adversely to the State in Sholar I


       3
       See State v. Sholar, No. 2014AP1945-CR, unpublished slip
op., ¶40 (Wis. Ct. App. June 30, 2015) ("Sholar I") (reversing
Judge Dallet's order summarily denying Sholar's postconviction
motion on the ground that Sholar presented sufficient evidence
to warrant a Machner hearing "at least as to the sexual assault
charge").


                                                     2
                                                                               No.        2016AP897-CR



was    not      whether     prejudice        existed,           but    whether           Sholar       was

entitled to a Machner hearing.                     If the State wanted to challenge

whether a Machner hearing should occur at all, it would have

needed to petition this court for review, but no petition was

needed to contest prejudice.                       Finally, we reiterate that the

Strickland prejudice test is distinct from a sufficiency of the

evidence test.

                                       I.    BACKGROUND

       ¶3       In   late       September         2011,      Sholar     and        his     life-long

friend, Shawnrell Simmons, were arrested after two victims, E.C.

and    S.G.,     separately        reported            to   police     that    they        had    been

victims of sex trafficking by Sholar (and that other girls had

been trafficked by Simmons) out of several motel rooms near the

Milwaukee airport, including the Econolodge on 13th Street.                                           The

State charged both men, but their cases proceeded separately.

The State charged Sholar with six counts:                                (1) trafficking a

child      (victim       E.C.    who   was    17        years    old    at    the        time);       (2)

soliciting           a      child           for         prostitution               (E.C.);            (3)
pandering/pimping (E.C.); (4) human trafficking (victim S.G.,

who was 21 years old at the time); (5) second-degree sexual

assault, use of force (S.G.); and (6) pandering/pimping (S.G.).4

       ¶4       Sholar pled not guilty, and in April 2012 his case

went       to   trial.          Both    victims             testified.         During           E.C.'s

testimony, the jury heard:

       4
       We hereinafter refer to                         counts    1,    2,     3,     4    and     6   as
"trafficking/pimping" counts.


                                                   3
                                                                   No.     2016AP897-CR



        E.C. met Simmons through a mutual friend after which he

         pressured her to work for him as a prostitute.                             She

         initially refused, but, after two of her friends went to

         work    for   Simmons,   and   because      she    was     desperate       for

         money, she called Simmons.                He sent her to work for

         Sholar     because     Simmons      already        had     enough        girls

         prostituting for him.

        Sholar picked up E.C. and her 13-year-old friend and both

         girls went to work for Sholar.

        Sholar,    other   girls,   or     E.C.    would    take        "half-naked"

         pictures, which Sholar posted on the "Backpage" website

         to    solicit   customers.5        In     the    pictures,        E.C.    wore

         lingerie or a bra and underwear.

        E.C.    identified    six   Backpage      ads,     each    of     which   had

         multiple pictures, depicting the girls Sholar and Simmons

         were trafficking——including several ads with pictures of

         E.C. and S.G.        The ads had titles such as "Chula Ready

         For You-19," "Fun And Sexy Red-22," "Let's Sparkle Dazzle
         You-21," and "Roxy Limited Time Only Specials-19."                         The

         ads listed a contact phone number.

The jury learned through other witnesses that the contact phone

number appearing in the ads matched the phone Sholar had in his

possession when he was arrested.

    ¶5        E.C.'s testimony also revealed:


    5
        Backpage is a classified advertising website.


                                        4
                                                               No.    2016AP897-CR



       There    were   more   Backpage     ads    in   addition     to   the   six

        previously discussed and the two additional ones E.C.

        identified      depicting    Simmons'           trafficking       victims,

        "Nicki,"6    and   another   girl    whose      name   E.C.   could     not

        remember.

       An "out-call" involved Sholar driving her to a customer

        who would pay her for sex while an "in-call" meant the

        customer would come to her motel room and pay her for

        sex.

       Simmons and Sholar worked together at times to transport

        girls to out-calls.

       Sholar gave E.C. a cell phone to use for the customer

        calls and to set up appointments.                  When the customer

        arrived, he would text her phone and she would either

        meet him and bring him to her motel room or send him her

        room number.

       During every appointment, which she estimated at possibly

        200, she had sexual intercourse with the customer for
        money.    She got the money upfront, $80-$100 for half-an-

        hour, $150-$200 for an hour.              She would hide the money,

        give the man a condom that Sholar supplied, and have sex.

        When the man left, she texted Sholar so he could come

        back to the room and take the money.


    6
       During trial, some individuals were referenced by their
first names only.    We use only first names for others for
privacy reasons.


                                     5
                                                            No.   2016AP897-CR



        Some nights she only had one or two calls, but could have

         as many as seven to ten.

        One time she worked a party with two girls working for

         Simmons after which Sholar and Simmons split the money.

        When S.G. started working for Sholar, E.C. took pictures

         of S.G. that Sholar posted on Backpage.

        E.C. was afraid of Sholar and the way he looked at her

         and screamed at her.          Sometimes he punched her, which

         left bruises.     A picture of one of her bruises was shown

         to the jury.      He threatened her and told her she could

         not leave.     She testified she wanted to stop prostituting

         "[r]ight away" but she did not have anywhere to go and

         she was scared.     She told Sholar that she wanted to stop

         but he said he would find her if she tried to leave.              He

         sent her threatening texts if he could not find her.              He

         showed up at various places kicking and banging on doors

         looking for her.

        Sholar "was prostituting girls every age.           The lowest age
         was 13."     She saw three other girls who stayed at the

         motel——S.G.,    Roxy,   and   Nicki——also   give    Sholar   money.

         Depending on the month, Sholar had up to four or five

         girls working for him.

    ¶6     E.C. testified that her work as Sholar's trafficking

victim ended when E.C. borrowed her friend A.F.'s car and Sholar

suggested instead of returning the car, they should sell it.

E.C. said Sholar asked her if A.F. had anything else they could
sell and E.C. told him about a 50-inch television she had seen
                                       6
                                                                            No.     2016AP897-CR



in A.F.'s apartment.                 Sholar, E.C., and another man known as

Cookie drove to A.F.'s home in Sholar's red car.                             E.C. waited in

the car and Sholar and Cookie brought down the television, and

some hats and shoes stolen from A.F.'s apartment.                                 They put the

television in the back seat and the other items in the trunk.

Sholar      went      back     into      the     apartment      to     steal        a    smaller

television, but A.F. came home, caught Sholar in the act, and

called police.

       ¶7      E.C. testified that before police arrived, she drove

Sholar's car with the stolen goods to the house where "Chrissy,"

the    mother      of      Sholar's      child,      resided.        When    E.C.       arrived,

Chrissy told her where to park the car, and then E.C. headed

back     to     the        Econolodge       because      Nicki       (one      of       Simmons'

trafficking victims) called her and said the police were at the

motel threatening to take Nicki's children if E.C. did not come

back.

       ¶8      E.C.     told       the   jury    that    when    she    returned         to   the

Econolodge, the police had left, but the desk clerk gave her a
police business card with a detective's number.                             E.C. called the

number, but the detective was not available.                           The next day, the

police      came      to     the    Econolodge         and   arrested        E.C.       for   the

burglary.        She told them where Sholar's car was parked with the

stolen television.             The prosecutor then asked E.C. to look at

several        photographs,         which       E.C.    identified      as        pictures     of

Sholar's red car with the stolen television in the back seat,

and the stolen hats and shoes in the trunk.                          E.C. next explained
that     she     told       Detective       Barbara      O'Leary       about       working    as
                                                 7
                                                                   No.    2016AP897-CR



Sholar's prostitute.          When asked why E.C. never called police

for help to leave Sholar, E.C. said she was scared.                            She said

that even if Sholar was in jail, Simmons could still hurt her.

She testified Simmons previously hurt her:                    he "smacked" and

"choked" her, "spit on [her] face," and held a gun to her head.

She also disclosed that Simmons sexually assaulted her.                               She

explained     that   Sholar    also   had    sex    with     her    but        that   was

expected because she worked for him.               E.C. testified that Sholar

had sex with her almost every day.

      ¶9     S.G. also testified.          When she first took the stand,

she was scared and the transcript indicates she was crying.                           She

said she was afraid that Sholar would harm her or her family

because she was testifying against him.                The prosecutor had to

ask   her    background   questions    to    calm    her.      After       regaining

composure, S.G. told the jury:

          She met Sholar, whom she called "L," when he came to help

           her roommate move out.           Sholar seemed "very nice" and

           "was   continuously   complimenting"        her    and        her    friend.
           After that meeting, they started texting.                At the end of

           July 2011, Sholar came over to "hang out for a little

           bit" at her place.

          Sholar started telling her and her friend about how "he

           had some girls that would, you know, go and do stuff for

           money" and that "he was a pimp."           S.G. said they thought

           he was joking.     She felt comfortable with Sholar because

           he was acting like a good friend, popping up when she
           needed a ride, and helping out "kind of like Superman."
                                       8
                                                        No.        2016AP897-CR



    As   a   result,   she   "confided    in   him   about    where       [her]

    family stayed," about the struggles she had experienced

    in life, and about how she had worked as an exotic dancer

    in the past.

   After getting close to Sholar, he started telling her she

    could make $300 if she gave private half-hour dances for

    people he knew.       She thought this would be an easy way to

    make a lot of money and agreed to the dancing.                  Her first

    job went smoothly and was just dancing.             Later, however,

    Sholar took pictures of her at Econolodge with his cell

    phone and posted them on Backpage.               Sholar gave her a

    cell phone and she started getting texts and calls from

    men who saw her Backpage ads and wanted to pay her to

    have sex.

   Sonya was the name S.G. had used when she danced.                      S.G.

    identified two Backpage ads, one depicting her and E.C.

    together,    titled      "Satin   &   Silk-21"    and     an     ad    with

    multiple pictures of S.G. labeled "Miss Fiery Sonya-21."
   She was shocked and told Sholar she did not want to do

    this, but he threatened her, saying he would harm her

    family, harm her, and get her evicted.             Sholar told her

    he had broken the jaw of a girl who tried to get away

    from him.

   Sholar was controlling and mean and if she did not listen

    to him, he threatened to kill her and her family.                        He

    would remind her he knew where her family lived.                         He


                                  9
                                                           No.     2016AP897-CR



    showed   up    at   her   parents'   home    looking    for     S.G.   and

    threatened her mother.

   Sholar set the price men paid to have sex with her, and

    she had sex with 10-15 men a night at $300/hour.                     These

    encounters were usually at the Econolodge, but sometimes

    Sholar took her to the men for "out-calls."                  She did this

    for about two weeks.         She would take the money when the

    man arrived, hide it, and then have sexual intercourse

    with the man.       Sometimes the man wanted to fulfill "weird

    fantasies" and that would require S.G. to call Sholar,

    who would tell her how much extra money the man needed to

    pay to complete those requests.

   Sholar gave S.G. food, drugs, alcohol, and clothes.                    She

    testified he provided her with Ecstasy, which she took

    because she could not have done "any kind of that stuff"

    sober.

   Occasionally, she and another girl would work together

    and have sex with the same man.             She did this once with
    E.C. and once with Nicki, who worked for Simmons.

   Although S.G. did not want to have sex with Sholar, this

    happened      "[p]retty   often."      She    testified        about   one

    particular night when Sholar wanted to have sex with her,

    but she was tired.         She tried to go to the bathroom to

    avoid it, but Sholar grabbed her arm "[i]n a way that

    made me not want to fight back," pushed her onto the bed,

    and forced penis-to-vagina sex on her.            After that time,


                                  10
                                                            No.    2016AP897-CR



    she did not fight Sholar when he wanted to have sex with

    her.

   When S.G.'s boyfriend got out of jail, she tried to leave

    Sholar, but Sholar threatened to tell S.G.'s boyfriend

    how she "was sleeping with so many men."                 S.G. said she

    agreed to come back to Sholar because she did not want

    her boyfriend to know what she was doing.                 Sholar agreed

    to tell her boyfriend that Sholar was selling drugs for

    S.G., so S.G. would not have to sell them herself.

   Then one day, S.G. left the cell phone Sholar had given

    her with a friend thinking Sholar would be so mad, it

    would give S.G. a way out of the situation.                    S.G. went

    home   and   fell   asleep.         While   she   was   asleep,    Sholar

    called   her     repeatedly,    leaving     threatening       voicemails,

    said he was going to set her house on fire, went to her

    roommate's place of work, threatened to get the roommate

    fired, and told the roommate she should kick S.G. out of

    the house or Sholar would get them both evicted and set
    the house on fire.       Sholar came back to S.G.'s house and

    pounded on her bedroom windows, knocked on the doors, and

    harassed the neighbors looking for S.G.                 S.G. was inside

    the house with the lights off hiding in a closet.

   While in that closet, she called her mother, who called

    the    police.      Sholar    had    been   to    the   mother's    house

    earlier looking for S.G. and demanding her mother give

    back a cell phone Sholar gave to S.G.


                                   11
                                                                   No.     2016AP897-CR



           The police arrived at S.G.'s home and she quickly packed

            what she needed so the police could take her to her

            mother's home.        At first, S.G. was too scared to tell the

            police the truth, but then told them a little bit about

            what had been happening.            A few weeks later, the police

            came back and she disclosed more information.

       ¶10        On cross-examination, S.G. testified Sholar most often

drove her to out-calls, but on occasion Sholar and Simmons did

so together.          She disclosed that on one occasion when she tried

to leave without telling Sholar where she was going, he pulled

her hair.         She also saw him get rough with E.C. on one occasion.

       ¶11        S.G.'s mother testified and confirmed S.G.'s version

of     events.           The     mother   testified      that    she     received     a

"hysterical" call              from her daughter saying there was a "man

outside who wanted to kill" S.G.                The mother also told the jury

about how Sholar came to the mother's home looking for S.G. and

asking for the phone he had given to S.G.                       She testified that

Sholar asked for S.G. by name.
       ¶12        The State also called several police witnesses, who

corroborated E.C.'s and S.G.'s testimony.                  Detective Lynda Stott

testified about human trafficking and how the pimp-prostitute

relationship evolves, which matched both victims'                         experience.

Stott explained how the pimp befriends the victim, helps her,

earns her trust, but when she starts working for him, everything

changes.          The pimp is controlling, makes her dependent on him,

and threatens her if she wants to stop or wants to leave.                          Stott
also       told    the   jury     about   taking   the    hard    drive     from    the
                                           12
                                                                         No.     2016AP897-CR



Econolodge's lobby computer, which had been used to post the

Backpage ads, and she testified about the women's clothing and

other items collected from the rooms being used by Sholar at the

Econolodge.         The     jury     saw   pictures        of    these     items,       which

included lingerie, high-heeled shoes, condoms, and an explicit

magazine titled "Straight Stuntin."

    ¶13     Detective        Richard       McQuown,        a    detective        with        the

Milwaukee     Police      High       Technology       Unit      who    had      experience

investigating human trafficking, testified about his review of

E.C.'s    cell     phone.       He    created       both   a    disk     containing      the

contents of E.C.'s phone as well as a printout.                                He told the

jury that the texts on E.C.'s phone evidenced human trafficking

because     much    of    the      content        revealed      attempts       to   arrange

meetings for sexual encounters between people who had never met.

He read several of the texts to the jury, including ones that

referenced "Star"——which E.C. said was her prostitute name, and

one looking for "Star" and "Sonya"——referring to E.C. and S.G.

McQuown also testified that the photos on this phone with girls
in "various poses and semi-sexually suggestive poses" without

the person's head are typically the type that get posted on

Backpage or a similar site.

    ¶14     The     State     presented       Detective         Richard        McKee    as    a

witness.      McKee also worked in the Milwaukee High Technology

Unit and had experience investigating human trafficking.                                     He

examined the cell phone taken from Sholar when he was arrested.

This phone's number was listed as the contact number on one of
the Backpage ads posted for purposes of trafficking Sholar's
                                             13
                                                                   No.    2016AP897-CR



victims.     McKee also examined the desktop computer taken from

the lobby at the Econolodge, another laptop computer, S.G.'s

cell phone, and Nicki's cell phone.                McKee composed a summary of

the   contents      of   all    these   devices     and    created    a   PowerPoint

presentation that was shown to the jury on a television during

his testimony.       McKee's presentation showed:

         Metadata from pictures of girls on Sholar's cell phone

          indicating the photos were taken in September 2011 at the

          Econolodge.          These same pictures then appeared in ads

          posted on Backpage.

         Data recovered from the desktop computer taken from the

          Econolodge's lobby including Backpage ads with pictures

          matching images on Sholar's cell phone; these ads were

          uploaded to Backpage from the Econolodge computer and the

          internet history of the Econolodge desktop showed "234

          visits    to   Backpage.com       pages    and    22    pages    that    were

          specifically relating to posting."

         Text messages from S.G.'s phone indicating the user was
          "Sonya"    and   messages       referencing      "in-calls"      and    "out-

          calls."

         Photos    from   other    cell       phones   and   a   laptop    computer

          depicting more Backpage ads and text messages referencing

          prostitution.

      ¶15   McKee testified that he examined Sholar's phone and

printed its contents, which became Exhibit 79.                        The printout

included    the    phone's      contact    list,    text    messages,      call   log,
photos, and listed the audio and video files.                        The prosecutor
                                          14
                                                                        No.        2016AP897-CR



took McKee through each text that referenced "L."                             He testified

about several incoming texts on that phone texting someone named

"L," including from someone with E.C.'s first name and phone

number.     For example, there was an outgoing message to someone

with E.C.'s first name that said "just so you know I also put

you down as a special of $100 hour just to increase the calls

'cause something got to give; I can't keep paying for that room

on my own."      E.C. texted back that other girls were working from

that room too:         "every other girl just goes, handles business

and that's it."

    ¶16     McKee explained the exhibit showed 1,384 total text

messages    between       September    14,       2011    and    September          28,    2011.

Exhibit 79 was admitted into evidence, but was not published in

its entirety to the jury during trial.                       The jury did, however,

see and hear much of the exhibit's contents through witness

testimony, McKee's PowerPoint presentation, and the individual

Backpage ads, which were admitted as separate exhibits.

    ¶17     Detective O'Leary also testified.                     She confirmed much
of E.C.'s version of events, including details about the A.F.

burglary.        She   also   told    the    jury       about    her     interview        with

Sholar after his arrest for the burglary, and how he consented

to the search of "his" phone, the same phone that generated

Exhibit 79.       She told the jury that she had left her contact

card with the desk clerk at the Econolodge, which led to E.C.'s

arrest     for    burglary.           O'Leary       testified          that        when     she

interviewed       E.C.,     E.C.     confessed          to     working        as     Sholar's
prostitute and told O'Leary the police could find evidence of
                                            15
                                                                           No.   2016AP897-CR



prostitution        on    Sholar's      phone.        O'Leary       explained      how      E.C.

assisted O'Leary in locating and printing the Backpage ads of

women who were trafficked by Sholar or Simmons.

       ¶18    "Nicki" also testified for the State, corroborating

much of what the victims said, although she described herself as

an    "escort"      rather      than     a    prostitute.           She     admitted        that

sometimes she had sex with her escort dates, but claimed she

worked    independently.               She   told    the     jury    she    lived      at   the

Econolodge and would ask Simmons for a ride if she had an "out-

call."       She identified three other girls, including E.C., who

worked in rooms at the Econolodge.                      Nicki testified that E.C.

stayed in a motel room with Sholar, whom she knew as "L."

       ¶19    Finally,        Peter     Wargolet,      the    desk    clerk      and     night

auditor at the Econolodge testified.                    He confirmed that E.C. was

staying in Room 157 and that Sholar was paying cash for that

room.        Sholar      paid    for    that    room    from     August      15,    2011     to

September 28, 2011.             He also told the jury that Sholar rented a

second room for two weeks in August 2011 and two other rooms for
one   night    each      in     September      2011.       Wargolet        confirmed        that

another      room   associated         with    Sholar      was   paid      for   by    either

someone named "Nicole" or Simmons.

       ¶20    Sholar      was    the    only    witness       for    the    defense.         He

testified that Simmons, his friend for 20 years, was the pimp.

Sholar denied any involvement.                      He claimed the phone found on

him when he was arrested belonged to Simmons, who had loaned it

to Sholar because Sholar's phone had broken.                              Sholar admitted
befriending E.C., but claimed he met S.G. only one time when he
                                               16
                                                                      No.     2016AP897-CR



was helping out her roommate, and a second time at the motel

when she was working for Simmons.                 Sholar denied ever having sex

with     S.G.        Sholar    testified       that    he    was    staying        at     the

Econolodge because his 14-year old son accidentally burned the

kitchen in his apartment.                Sholar told the jurors he sold K2,

which was like marijuana but legal, but he did not drink or do

drugs.       He claimed he did not steal the television; rather, E.C.

sold it to him.             He told the jury he had been convicted four

times.

       ¶21     In    rebuttal,     the    State    played      part    of     the       audio

recording       from   O'Leary's       interview      with   Sholar,      during        which

Sholar acted as if the cell phone was his, consented to a search

of it, and blamed E.C. for the burglary.                     O'Leary testified that

Sholar identified for her both the number of the cell phone and

the security code needed to unlock the phone.                          The State also

called another police officer who responded to the A.F. burglary

scene    and     testified      that     Sholar    claimed     he     came    to     A.F.'s

apartment to "sell some weed and then all this happened."
       ¶22     Detective      Steve    Wells     testified     during       the     State's

rebuttal case that when he interviewed Sholar, Sholar told a

different story about his cell phone.                  Sholar said nothing about

his cell phone breaking; instead, Sholar claimed Simmons' cell

phone had broken.           Sholar told Wells that Simmons had to borrow

Sholar's cell phone, which is why pictures of the girls matching

the    Backpage      ads    were   found    on    Sholar's     phone.         The       video

recording       of   this     interview    was    played      for   the      jury.        The
recording showed Sholar explaining that the Backpage pictures
                                           17
                                                                           No.     2016AP897-CR



were       on   his     phone   not      because     he       was    involved        in    this

trafficking ring, but simply because he was helping Simmons get

pictures of his prostitutes since Simmons' phone was broken.

       ¶23      During deliberations, the jury sent a question to the

circuit         court:             "Can      we      request           Lamont's            phone

records? . . . Looking for in/outbound re:                           'I got $' txt msgs

while      with   client."         In     discussing      the       question       with    both

attorneys, the circuit court asked:

       [I]sn't it all contained in the one exhibit that
       Detective McKee had, has put in the one big thick one,
       would all those things be answered in there? Because
       I don't want to be parceling out. I just want to give
       them the exhibit that they seem to be requesting.
The exhibit referred to was Exhibit 79.                        All agreed to send the

entire exhibit into the jury room.                       The jury later asked for

E.C.'s phone records, which composed Exhibit 70, and that was

also sent to the jury room.

       ¶24      The jury returned guilty verdicts on all six counts

and Sholar was sentenced.                  His lawyer filed a postconviction

motion seeking a new trial based on ineffective assistance.7                                  As

material        here,    Sholar     claimed        his    trial       lawyer       gave     him

ineffective assistance by failing to object "when hundreds of

text       messages"     referencing        drug     dealing         and     other     illegal

activity        were    admitted    into    evidence          and    given    to     the   jury

during      deliberations.          In     support       of    the    motion,        appellate


       7
       Sholar's motion alleged additional errors not pertinent to
this review.


                                             18
                                                                           No.    2016AP897-CR



counsel attached pages 10-109 of Exhibit 79, which contained the

text messages from Sholar's cell phone.                      The rest of Exhibit 79,

including the pictures from the cell phone depicted on pages

130-173 of the exhibit, were not included in support of the

postconviction motion.

      ¶25     The     circuit        court         denied     Sholar's           ineffective

assistance claims without holding a Machner hearing, reasoning

that even if parts of Exhibit 79 should have been excluded as

other acts evidence, Sholar failed to prove prejudice.                                   Sholar

appealed, and the court of appeals reversed the circuit court.

The court of appeals held Sholar's motion alleged sufficient

facts to warrant a Machner hearing, and remanded to the circuit

court.

      ¶26     At    the      Machner       hearing,         Sholar's       trial        counsel

testified     he     filed    a     suppression       motion       seeking        to    exclude

Sholar's      cell        phone,     but     the      circuit       court        denied     the

suppression        motion.         Trial   counsel        explained     that       after    the

failed    suppression         motion,      he      felt     the    phone     evidence       was
admissible and there was no basis to object to its admission.

At   trial,    the    defense       theory      was    that       Simmons,       rather    than

Sholar,     was     the    pimp     and    that     the     cell    phone        belonged    to

Simmons, not Sholar.           Only a handful of the messages on the cell

phone could be linked directly to Sholar while hundreds of them

could be linked to Simmons.                  When the jury asked for Sholar's

phone    records,      trial       counsel      did   not     object       to     the    entire

exhibit going to the jury because parceling down the exhibit to


                                             19
                                                                 No.      2016AP897-CR



only the messages linked to Sholar would be damaging to his

client.

       ¶27   The circuit court ruled that Sholar failed to prove

Exhibit 79 prejudiced his defense of the counts relating to sex

trafficking and pimping:           "So as to the trafficking counts which

would be Counts 1, 2, 3, 4 and 6 I find that the performance was

certainly not prejudicial as the evidence on those counts was

overwhelming."        The circuit court explained that "virtually all

of the things Mr. Sholar complains of here came in in this trial

in more than one way."          That is:

       There was violence testified to by the girls.     There
       was testimony about drug use to make it through the
       night.    There was testimony from the girls about
       threats, there was testimony about burglary, there was
       testimony about a potential car theft.       There was
       testimony about fetishes and there was testimony about
       group sex parties and the list seems to go on and on.
       Given that circumstance, I believe there was no chance
       of a different result on the trafficking counts.
The circuit court discussed Sholar's trial lawyer's strategy to

not    object   to    the   admission      of    the   texts   as    "sound      trial

strategy" given the defense theory of blaming Simmons.                             The
circuit court noted that "[m]uch of what is in these messages is

mundane."

       ¶28   The circuit court, however, saw the impact of Exhibit

79's    admission      on    the     sexual       assault      conviction        quite

differently.         Although    Sholar's       argument    rested   on    the    text

messages, the circuit court was most troubled by the pictures in

the exhibit, which the circuit court viewed as "child porn" that
"serve[d] to inflame the jury."                 It did not "see how a fair

                                        20
                                                                   No.    2016AP897-CR



trial could be had on the sexual assault count with the jury

being given these photos."                Specifically with respect to that

count,    the    circuit       court   commented:        "The   messages    and   the

pictures are in my opinion so inflammatory that I think a jury

then and there might have convicted him of virtually anything.

I do not have confidence in the result as to that count."                         The

circuit court ruled that "as to the sexual assault count the

defense clearly has shown deficient performance and prejudice."

The circuit court vacated the sexual assault conviction.

       ¶29     The   circuit     court    gave   seven     reasons   why    the   law

allowed it to distinguish the human trafficking counts from the

sexual assault count and uphold the former while vacating the

latter:        (1) the court of appeals decision suggested the split

analysis; (2) this case involved multiple counts with more than

one victim and an ineffective assistance analysis must be a

charge-specific          decision;        (3)    judicial       economy     dictates

upholding the counts that would result in the same outcome on

retrial; (4) vacating the unaffected counts would "waste the
time     and    effort    of     the   parties";     (5)    a   totality     of   the

circumstances        analysis     means    looking   at     "specific     facts   and

specific charges"; (6) the sexual assault count is "separate and

apart" from the others; and (7)                  Strickland     and the singular

verdict forms support the distinction, allowing vacatur of a

weakly supported         conviction while upholding an overwhelmingly

supported conviction.

       ¶30     Unhappy with the distinction, Sholar sought vacatur of
all of his convictions.            The court of appeals rejected Sholar's
                                           21
                                                                          No.     2016AP897-CR



arguments and affirmed the circuit court.                      We accepted Sholar's

petition for review.

                                      II.     ANALYSIS

                               A.    Ineffective Assistance

      ¶31    Sholar contends the prejudice he proved to support his

ineffective assistance claim should result in vacatur of all of

his convictions, not just the sexual assault conviction.                                     He

argues     the       court   of     appeals    should    be    reversed         because      it

conducted        a     "count-by-count"         sufficiency       of        the       evidence

analysis, contrary to Strickland.                  The State counters that guilt

is   decided      count-by-count        and    Strickland      expressly          permits     a

reviewing        court    to   examine      prejudice     in    the       context       of   an

ineffective assistance claim in the same way.                         It contends that

the trafficking/pimping counts were not affected by Exhibit 79

because     of       overwhelming     properly-admitted        evidence           supporting

those     convictions        and    because    "virtually      all     of       the   things"

Sholar     claims        prejudiced     him    from     Exhibit      79     were      already

presented to the jury through properly-admitted evidence.                                    We
agree with the State.8




      8
       We note that the State did not appeal the vacatur of the
sexual assault conviction nor did it appeal the circuit court's
ruling that trial counsel acted deficiently in allowing Exhibit
79 to go to the jury.    Although the court questions the legal
correctness of both decisions based on our review of the record,
given the State's choices to forgo challenging either, we let
both decisions stand without further discussion.


                                              22
                                                                         No.       2016AP897-CR



                                     1. Legal Principles

          ¶32   A criminal defendant has the constitutional right to

effective assistance of counsel.                  See State v. Balliette, 2011

WI 79, ¶21, 336 Wis. 2d 358, 805 N.W.2d 334 (citing Strickland,

466   U.S.      at    686).     To    establish     the       assistance       a    defendant

received was ineffective, he must prove two elements:                                 (1) his

counsel's        performance      was    deficient,          and   (2)    the       deficient

performance prejudiced the defense.                    Id.

          ¶33   To prove prejudice, a defendant must establish that

"particular errors of counsel were unreasonable" and "that they

actually        had   an    adverse     effect    on    the     defense."           Id.,    ¶24

(quoting Strickland, 466 U.S. at 693).                        In assessing whether a

defendant proves prejudice, the court considers the surrounding

circumstances because "an act or omission that is unprofessional

in one case may be sound or even brilliant in another."                               Id.    We

evaluate whether "there is a reasonable probability that, but

for       counsel's        unprofessional        errors,       the    result         of     the

proceeding would have been different.                        A reasonable probability
is    a    probability        sufficient    to    undermine        confidence         in    the

outcome."         Strickland, 466 U.S. at 694.                     In other words, we

examine whether there is "a reasonable probability that, absent

the errors, the factfinder would have had a reasonable doubt

respecting guilt."              Id. at 695.         Our concern is whether the

error rendered the trial unfair and unreliable.                                Id. at 687,

689, 693-96.

          ¶34    In reviewing the prejudice prong, Strickland directs:


                                            23
                                                                 No.    2016AP897-CR


     Some errors will have had a pervasive effect on the
     inferences to be drawn from the evidence, altering the
     entire evidentiary picture, and some will have had an
     isolated, trivial effect.     Moreover, a verdict or
     conclusion only weakly supported by the record is more
     likely to have been affected by errors than one with
     overwhelming record support.    Taking the unaffected
     findings as a given, and taking due account of the
     effect of the errors on the remaining findings, a
     court making the prejudice inquiry must ask if the
     defendant has met the burden of showing that the
     decision reached would reasonably likely have been
     different absent the errors.
466 U.S. at 695-96.

     ¶35       Ineffective assistance claims present mixed questions

of fact and law.         Balliette 336 Wis. 2d 358, ¶19.               The circuit

court's factual        findings will be         upheld "unless shown to be

clearly erroneous," but "[t]he ultimate conclusion as to whether

there was ineffective assistance of counsel is a question of

law."    Id.

                                   2. Application

     ¶36       In this case, there are two related issues underlying

the ineffective assistance claim:                (1) whether a defendant who

proves    ineffective        assistance    as   to    one    count,    after   being
convicted of multiple counts, should get a new trial on all

counts; and (2) whether Sholar has proven that publication of

Exhibit 79 to the jury prejudiced him on the trafficking/pimping

counts.

     ¶37       The   first   is   an   issue    of   first   impression:       if   a

defendant convicted of six counts proves his trial counsel's

deficient performance prejudiced him on one of his convictions,
is he entitled to a new trial on all six convictions?                          Under


                                          24
                                                                            No.     2016AP897-CR



Strickland,         the      answer      is      no.          Strickland          specifically

recognizes that some errors will have a pervasive effect and

others will have an "isolated, trivial effect."                                   466 U.S. at

695-96.        Of     particular        importance       in    this       case,     Strickland

acknowledges          that      some    factual     findings        will     be    altogether

unaffected by defense counsel's error.                        Id. at 695.          A "verdict

or   conclusion"         based     on   weak     evidence      is    more    likely       to   be

affected by the error than a decision based on overwhelming

evidence.       Strickland, 466 U.S. at 695-96.                     Strickland speaks in

terms     of    the      "verdict"       or    "conclusion"         and      the       "decision

reached."             Id.         In    single-count          cases,       the     "verdict,"

"conclusion," or "decision" will be a single conviction.                                        In

contrast, in multi-count trials, the "verdict," "conclusion," or

"decision" will be count-specific.

      ¶38      When      this    jury    deliberated,         it    did    not     answer      the

single question——"is Sholar guilty or not guilty?"                                Instead, it

rendered        six       separate       verdicts,        answering          six        separate

questions.          It      determined     whether       Sholar     was     guilty       or    not
guilty of six separate crimes.                      There is no basis in law or

logic to require a new trial on all six convictions if the error

affected only one.               The circuit court gave seven legally valid

and factually logical reasons supporting the split result.                                     See

supra ¶29.       We ratify each of them.

      ¶39      Sholar cites three cases he claims support his "all or

nothing"       position:          (1)    State      v.   Jenkins,      2014       WI    59,    355

Wis. 2d 180, 848 N.W.2d 786; (2) State v. Thiel, 2003 WI 111,
264 Wis. 2d 571, 665 N.W.2d 305; and (3) State v. Honig, 2016 WI
                                               25
                                                                                 No.     2016AP897-CR



App    10,     366     Wis. 2d 681,          874       N.W.2d 589.           In    Jenkins,          the

defendant         was         convicted           of      three        crimes——first-degree

intentional homicide, first-degree reckless injury, and felon in

possession of a firearm.                     355 Wis. 2d 180, ¶2.                  We overturned

all    three      convictions,             ruling       that    trial        counsel         provided

ineffective assistance for failing to call a bystander witness

who "would contradict or impeach the eyewitness upon whom the

prosecution's entire case relied."                         Id., ¶¶40-48, 59 (emphasis

added).       In Thiel, the defendant was convicted of seven counts

of     sexual      exploitation            by     a     therapist,         and     all        of     the

convictions were based on the credibility of a single witness.

264    Wis. 2d         571,       ¶¶2-4,    13-16.        We    overturned             all    of     the

convictions,           ruling       that     trial      counsel       provided         ineffective

assistance         by     failing          to      discover          and     use        substantial

impeachment          evidence       in     cross-examining           the     crucial         witness.

Id., ¶¶26-32, 46.                 In Honig, the defendant was convicted of two

child sexual assault charges based on the testimony of the five-

and three-year-old child victims, and their Uncle Raymond.                                          Id.,
¶¶1,    33.       The     court       of    appeals       overturned         the       convictions,

ruling that trial counsel provided ineffective assistance for

failing      to   call        a    witness      who    heard    Uncle      Raymond           admit   to

framing the defendant by telling each of the child victims to

make the false accusations.                     Id., ¶¶6, 26, 29, 33.

       ¶40     Sholar     correctly          notes      that    in     all    three          of    these

cases, the reviewing court did not do a count-by-count prejudice

analysis, but simply ordered a new trial on all the convictions.
All    three      of    these       cases,      however,       are    distinguishable               from
                                                  26
                                                                         No.     2016AP897-CR



Sholar's      case.      In    Jenkins,       Thiel,    and   Honig,       the       multiple

charges       depended    on     the    same       evidence    and       the        deficient

performance         affected      the        reliability      of        that        evidence.

Significantly, no one argued in Jenkins, Thiel, or Honig that

the prejudice affected only one count, but not others.                               In each

case, both sides presented the argument as an all or nothing

proposition.        None of these cases involved circumstances where

the prejudice attached to the defense of only one count, or

involved      one     charge    substantively          separable        from    the     other

charges and the evidence presented, or involved one charge with

less    evidentiary      support       and    other    charges     with        overwhelming

evidentiary support.            Accordingly, Jenkins, Thiel, and Honig do

not preclude the split-prejudice conclusion reached in Sholar's

case.

       ¶41    Having concluded that a split result is lawful, we

turn to the second issue——whether the error here prejudiced the

trafficking/pimping counts.              This is not a close question.                   The

State        presented        overwhelming         evidence        to      support        the
trafficking/pimping counts.              Both victims reported independently

of each other and told consistent narratives about how Sholar

trafficked them.          Other witnesses materially corroborated the

victims' testimony, including the Econolodge desk clerk, whose

testimony supplied corroborating details.                     Physical and forensic

evidence      further     verified       the       victims'    version         of     events.

Backpage ads tied to Sholar's cell phone number, Sholar's cell

phone itself, and his admission to police that the cell phone
was his all supported the victims' testimony.
                                              27
                                                                       No.     2016AP897-CR



      ¶42      Sholar    argues      that    Exhibit    79's     publication      to    the

jury prejudiced the trafficking/pimping convictions because the

exhibit depicted him as a violent drug dealer with 150 illicit

pictures on his cell phone.                 But the jury saw "virtually all" of

the exhibit's contents, which already had been admitted into

evidence.         The jury heard testimony:             (1) from police witnesses

about     the     damning     text     messages      connecting        Sholar     to   the

trafficking ring; (2) from the victims that Sholar was violent

and provided them with illegal drugs; and (3) about Sholar's

threats of harm to the trafficking victims and their families.

During      the     trial,     the    jury     already        viewed   many      Backpage

pictures, most of which were identical to the ones contained in

the   exhibit.          During    Detective        McKee's     testimony,       the    jury

viewed many of the illicit photos from Sholar's cell phone on a

television during McKee's PowerPoint presentation.                           The jury saw

evidence of physical harm Sholar caused to E.C.                          And the jury

heard    and      saw   the   fear     E.C.    and     S.G.    exhibited       when    each

testified at trial.
      ¶43      In order to prove Exhibit 79 prejudiced his defense of

the trafficking/pimping counts, Sholar must show that but for

Exhibit 79 going to the jury, there is a reasonable probability

the jury would have had a reasonable doubt as to his guilt on

those charges.           The record clearly thwarts Sholar's ability to

do so.      There is no reasonable probability that absent Exhibit

79's publication, the jury would have had a reasonable doubt as

to Sholar's guilt on the trafficking/pimping convictions.                              One
witness     after       the   next    told    the    same     story,    with     specific
                                              28
                                                                             No.     2016AP897-CR



details       corroborating           other     witnesses.             The     physical         and

forensic evidence including the photos, the Backpage ads, the

metadata,        and     the    Econolodge      records     reinforced             the   State's

case.     The result of the trial as to the trafficking/pimping

convictions was fair and reliable.                       Sholar advances nothing to

shake our confidence in the outcome of these convictions.

                                      3. Clarification

       ¶44       Finally,      we     address    briefly        Sholar's          concern   that

reviewing         courts       are        incorrectly     applying           the     Strickland

ineffective assistance prejudice test.                      Sholar claims reviewing

courts are improperly denying ineffective assistance claims by

measuring prejudice under a sufficiency of the evidence test or

holding defendants to a strict outcome-determinative test.                                       We

reiterate that the Strickland prejudice test is distinct from a

sufficiency of the evidence test and we confirm that a defendant

need    not      prove    the    outcome      would     "more     likely       than      not"    be

different         in     order       to    establish     prejudice           in     ineffective

assistance cases.              See Strickland, 466 U.S. at 693.
       ¶45       In reviewing a sufficiency of the evidence claim, a

court upholds a conviction unless "the evidence, viewed most

favorably to the state and the conviction, is so insufficient in

probative value and force that it can be said as a matter of law

that no trier of fact, acting reasonably, could have found guilt

beyond       a    reasonable          doubt."           State     v.     Poellinger,            153

Wis. 2d 493,           501,    451    N.W.2d 752        (1990).        To     succeed       on    a

sufficiency claim, a defendant must show a record devoid of
evidence on which a reasonable jury could convict.                                 In contrast,
                                                29
                                                                        No.     2016AP897-CR



to succeed in proving ineffective assistance, a defendant must

show that but for his lawyer's deficient performance, there is a

reasonable probability the outcome would have been different.

"Reasonable probability" is tied to confidence in the outcome.

Both    standards      require        a    reviewing       court     to       examine    the

evidence, but in sufficiency challenges, convictions are upheld

when the record shows a bare modicum of evidence from which a

reasonable jury could find guilt.                     In ineffective assistance

challenges, a defendant must establish that but for his lawyer's

error, there is a reasonable probability the jury would have had

a reasonable doubt as to guilt.

       ¶46   Accordingly, a defendant need not prove the jury would

have acquitted him, but he must prove there is a reasonable

probability it would have, absent the error.                           If there is no

reasonable     probability        that      the     jury   would       have     reached    a

different verdict, then a defendant has not proven prejudice.

See Strickland, 466 U.S. at 695-96.

                                    B.     Forfeiture
       ¶47   Sholar contends the State forfeited its right to argue

prejudice     at    the     Machner       hearing   because      the    State      did    not

petition     this    court    for     review      after    the     court      of   appeals'

decision in        Sholar    I.     The State denies forfeiture occurred

because Sholar I did not decide the merits of the prejudice

prong and had the State petitioned for review after Sholar I,

the only issue "would have been whether Sholar sufficiently pled

his motion to entitle him to a Machner hearing."                           The State is
correct.
                                             30
                                                              No.    2016AP897-CR



                                 1. Legal Principles

       ¶48     Forfeiture is a rule of judicial administration that

may be applied when a party fails to assert a right.                   State v.

Ndina, 2009 WI 21, ¶¶28, 30, 315 Wis. 2d 653, 761 N.W.2d 612.

It is primarily asserted when a party fails to object to an

error at trial; its purpose "is to give the opposing party and

the circuit court an opportunity to correct any error."                    State

v. McKellips, 2016 WI 51, ¶47, 369 Wis. 2d 437, 881 N.W.2d 258.

       ¶49     The forfeiture rule has also been applied when a party

asserts new issues before this court that were not raised in a

petition for review, a response to a petition for review, or a

cross-petition.       See, e.g., State v. Smith, 2016 WI 23, ¶41, 367

Wis. 2d 483, 878 N.W.2d 135; State v. Sulla, 2016 WI 46, ¶7 n.5,

369 Wis. 2d 225, 880 N.W.2d 659.              The purpose for forfeiture in

Smith and Sulla, however, arose from the general rule that an

issue not raised in the petition for review, response, or cross-

petition is not properly before us.                 A petitioner's arguments

are limited to the issues on which we granted review, unless
this court orders otherwise.              See Sulla, 369 Wis. 2d 225, ¶7

n.5.

       ¶50     A Machner hearing is a prerequisite for consideration

of   an   ineffective       assistance    claim.      State   v.    Machner,   92

Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979); see also State

v. Curtis, 218 Wis. 2d 550, 554, 555 n.3, 582 N.W.2d 409 (Ct.

App. 1998) ("assuming there are factual allegations which, if

found     to   be   true,    might   warrant    a   finding   of    ineffective
assistance of counsel, an evidentiary hearing is a prerequisite
                                         31
                                                                        No.     2016AP897-CR



to    appellate      review   of    an     ineffective      assistance         of   counsel

issue").      A defendant is entitled to a Machner hearing only when

his    motion      alleges    sufficient         facts,   which     if        true,     would

entitle him to relief.              State v. Allen, 2004 WI 106, ¶14, 274

Wis. 2d 568, 682 N.W.2d 433.                If a defendant's motion asserting

ineffective        assistance      "does     not    raise    facts       sufficient        to

entitle      the     movant   to    relief,        or   presents     only       conclusory

allegations, or if the record conclusively demonstrates that the

defendant is not entitled to relief, the circuit court has the

discretion to grant or deny a hearing."                   Sulla, 369 Wis. 2d 225,

¶23 (citations omitted).

       ¶51    When a circuit court summarily denies a postconviction

motion       alleging    ineffective         assistance      of     counsel           without

holding a Machner hearing, the issue for the court of appeals

reviewing       an    ineffective        assistance       claim    is         whether     the

defendant's motion alleged sufficient facts entitling him to a

hearing.        See,    e.g.,      State    v.   Love,    2005     WI    116,       ¶2,   284

Wis. 2d 111, 700 N.W.2d 62.
                                   2.    Application

       ¶52    Sholar argues the forfeiture rule should have barred

the State from challenging prejudice at the Machner hearing.                               He

premises his argument on the belief that the court of appeals in

Sholar I decided the merits of the prejudice prong and simply

sent the case back to the circuit court to decide whether trial

counsel acted deficiently.               He claims the State "sandbagged" him

by not filing a motion for reconsideration with the court of
appeals seeking clarification of Sholar I and by not filing a
                                            32
                                                                 No.    2016AP897-CR



petition     for   review    to   alert      him   the   State    believed       "the

question of prejudice remained open for debate."                   The law does

not support Sholar's position.

       ¶53   First, the court of appeals could not decide Sholar's

ineffective     assistance    claim     because     no   Machner       hearing    had

occurred.      A Machner hearing is required before a court may

conclude a defendant received ineffective assistance.                      Curtis,

218 Wis. 2d at 554-55.            In   Curtis, the defendant argued his

"trial counsel's errors were so obvious and could not possibly

have been trial tactics, no Machner hearing was required."                        Id.

at 554.       The Curtis court of appeals correctly rejected that

argument, noting:

       The hearing is important not only to give trial
       counsel a chance to explain his or her actions, but
       also to allow the trial court, which is in the best
       position to judge counsel's performance, to rule on
       the motion.
Id.9       We cited Curtis with approval in addressing whether a

defendant was prejudiced when his counsel failed to object to

the admission of evidence, and as a result whether this court

should remand for a Machner hearing.                 See State v. Beuchamp,

2011 WI 27, ¶39 & n.32, 333 Wis. 2d 1, 796 N.W.2d 780.



       9
       There are rare circumstances when prejudice may be
presumed, such as when counsel was actually or constructively
denied altogether, or when a more limited presumption of
prejudice is warranted, such as when counsel was burdened by an
actual conflict of interest. See Strickland v. Washington, 466
U.S. 668, 692 (1984). None of these circumstances apply in the
matter before us.


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                                                                      No.     2016AP897-CR



       ¶54    We    acknowledge      that       appellate     courts          frequently

decide——even        in   the    absence    of   a   Machner     hearing——that          the

record conclusively demonstrates a defendant was not prejudiced

by alleged deficient conduct, often presuming without deciding

that counsel's performance was deficient.                       Id.         But when an

appellate court remands for a Machner hearing, it must leave

both the deficient performance and the prejudice prongs to be

addressed, because whether a defendant was prejudiced depends

upon the existence of deficient performance.                      If trial counsel

testifies at the Machner hearing that the choice under attack

was based on a trial strategy, which the circuit court finds

reasonable, it is "virtually unassailable" and the ineffective

assistance claim fails.            See generally State v. Breitzman, 2017

WI 100, ¶65, 378 Wis. 2d 431, 904 N.W.2d 93, citing State v.

Maloney, 2004 WI App 141, ¶23, 275 Wis. 2d 557, 685 N.W.2d 620;

see also United States v. Curtis, 742 F.2d 1070, 1074-75 (7th

Cir. 1984) (noting defendant abandoned ineffective assistance

claim because a strategic choice is "virtually unassailable.").
Consequently,       an   appellate    court      should   not    decide        prejudice

exists   in    an    ineffective     assistance      claim    without         a   Machner

hearing.       Doing so would put the cart before the horse.                           For

purposes      of     determining     whether        counsel     was         ineffective,

prejudice cannot exist without being attached to an error on the

part   of     counsel.         Presuming    prejudice     could       result      in   the

untenable scenario of an appellate court prematurely deciding a

defendant was prejudiced by an act without knowing the reason
for the act, followed by a Machner hearing where trial counsel
                                           34
                                                                       No.     2016AP897-CR



gives a reasonable strategic choice for the act——meaning the

defendant    was     not    prejudiced     at    all,     in    the    context        of    an

ineffective     assistance        claim.          Under    Strickland,           a        court

evaluates the prejudicial impact of defense counsel's errors,

not counsel's reasonable strategic choices.                          466 U.S. at 687

("[T]he   defendant        must    show    that    the     deficient          performance

prejudiced     the       defense."     (emphasis     added));         Balliette,            336

Wis. 2d 358,       ¶21     (defendant     must     show    "that        the     deficient

performance resulted in prejudice to the defense.").

    ¶55     Second,        the   forfeiture       rule    does       not     apply        here.

Although the forfeiture rule has been used to foreclose parties

in this court from making arguments not raised in petitions for

review, responses, or cross-petitions, it is primarily used to

ensure parties voice objections at trial to give the circuit

court and the opposing party the opportunity to correct any

error.      Sholar       does    not   provide,     nor        can    we     locate,       any

authority suggesting the forfeiture rule should be extended to

preclude the State from challenging prejudice because it did not
petition this court for review following the court of appeals'

decision remanding for a Machner hearing.

    ¶56     Third, the only issue decided adversely to the State

in Sholar I was whether Sholar's postconviction motion entitled

him to a Machner hearing.              Thus, the only issue the State could

have petitioned this court to review was the court of appeals'

determination      that      Sholar     alleged     sufficient         facts         in     his

postconviction motion to entitle him to a Machner hearing.                                   As


                                          35
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already      noted,    the     court   of   appeals     did    not,    nor     could    it,

decide in Sholar I that prejudice had been established.

       ¶57     Finally, the court of appeals in Sholar II confirmed

that it did not decide the prejudice part of the ineffective

assistance claim in Sholar I:                    "This court did not rule that

trial counsel's performance was deficient in any manner nor did

this court rule there was prejudice as to any of the charges."

Sholar II, ¶19.           That is the law of the case and we see no basis

upon which to reject the court of appeals' own interpretation of

its    prior       decision,     particularly       because     the     law    does     not

support any other interpretation.

                                  III.      CONCLUSION

       ¶58     We hold Strickland authorizes analyzing the prejudice

prong    of    ineffective        assistance       claims     on   a    count-by-count

basis.       We affirm the court of appeals' decision upholding the

circuit court's finding that Exhibit 79 was prejudicial only

with    respect      to    the   sexual     assault    conviction,       but     not    the

trafficking/pimping convictions.                  We agree with the court of
appeals and the circuit court that Sholar failed to prove his

lawyer's deficiency prejudiced him on the trafficking/pimping

convictions, which were supported by overwhelming evidence.                              We

further hold the State did not forfeit its right to argue the

prejudice prong because the only issue it could have raised in a

petition for review after Sholar I was whether a Machner hearing

should occur at all.

       By    the    Court.—The     decision       of   the    court    of     appeals    is
affirmed.
                                            36
                                                                    No.   2016AP897-CR.ssa


     ¶59    SHIRLEY         S.     ABRAHAMSON,         J.    (dissenting).              The

majority holds that Sholar's ineffective assistance of counsel

claim fails because he is unable to demonstrate that he was

prejudiced       by     trial      counsel's      failure      to     object     to    the

submission of Exhibit 791 to the jury during deliberations.

     ¶60    Unlike the majority, I find the instant case to be a

close call.           On the whole, I conclude that Exhibit 79 is so

prejudicial that my confidence in the outcome of Sholar's entire

trial is undermined.

     ¶61    Although         the     majority         correctly       concludes        that

prejudice    may       be   determined     on     a    count-by-count        basis,    the

majority acknowledges that there may be circumstances in which

trial counsel's deficient performance results in errors that are

so   prejudicial        that       the   result        of   the     entire     trial     is

undermined.2

     ¶62    In     State     v.     Sullivan,         the   court    set     forth     what

constitutes "unfair prejudice."             The Sullivan court explained:

     Unfair prejudice results when the proffered evidence
     has a tendency to influence the outcome by improper
     means or if it appeals to the jury's sympathies,
     arouses its sense of horror, provokes its instinct to
     punish or otherwise causes a jury to base its decision
     on something other than the established propositions
     in the case.     In this case the danger of unfair
     prejudice was that the jurors would be so influenced
     by the other acts evidence that they would be likely


     1
       Exhibit 79 is composed of the printed contents of Sholar's
phone, including the phone's contact list, text messages, call
log, photos, audio files, and two videos. Majority op., ¶15.
     2
         Majority op., ¶¶37-40.


                                           1
                                                                       No.    2016AP897-CR.ssa

      to convict the defendant because                          the     other        acts
      evidence showed him to be a bad man.
State     v.       Sullivan,       216     Wis. 2d 768,       789-90,        576     N.W.2d 30

(citations omitted).

      ¶63        The submission of Exhibit 79 to the jury is an example

of an error with such a substantial prejudicial impact that

confidence in the result of the entire trial is undermined.

      ¶64        The    circuit      court      aptly      recounted    the        prejudicial

nature      of     Exhibit     79.         It   described     several        of    the   photos

contained          in   Exhibit      79    as   "child      porn"    that     "serve[d]        to

inflame the jury."                The circuit court did not "see how a fair

trial could be had on the sexual assault count with the jury

being given these photos."                  The circuit court opined that "[t]he

messages and the pictures are in my opinion so inflammatory that

I   think      a    jury    then     and    there     might   have     convicted         him   of

virtually anything.               I do not have confidence in the result as

to [the sexual assault] count."

      ¶65        It is hard to imagine anything more prejudicial than

submitting          child    pornography         extracted     from     the        defendant's

phone to the jury for its consideration during deliberations.

Such inflammatory evidence creates a legitimate concern that the

jury convicted Sholar not because the State proved every element

of the charged crimes beyond a reasonable doubt, but instead to

punish Sholar for being a bad man with child pornography on his

phone.3


      3
       See         State     v.    Sullivan,         216   Wis. 2d 768,           789-90,      576
N.W.2d 30.


                                                 2
                                              No.   2016AP897-CR.ssa


    ¶66   As the circuit court put it, the content of Exhibit 79

is "so inflammatory that I think a jury then and there might

have convicted [Sholar] of virtually anything."     I agree with

the circuit court, and for that reason, I would reverse the

court of appeals and remand the instant case to the circuit

court for a Machner hearing.

    ¶67   Accordingly, I dissent.




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    No.   2016AP897-CR.ssa




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