OF DECISION OF THE COURT OF APPEALS Reported at 377 Wis.2d
337, 900 N.W.2d 872 (2017 - unpublished)
of a decision of the Court of Appeals Circuit Court Milwaukee
County L.C. No. 2011CF4807 Rebecca F. Dallet and Thomas J.
the defendant-appellant-petitioner, there were briefs filed
by and an oral argument by Hannah Schieber Jurrs, assistant
state public defender.
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.
REBECCA GRASSL BRADLEY, J.
Lamont Donnell Sholar seeks review of the court of appeals
decision affirming the circuit
court's order ruling that his trial counsel's
failure to 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. We affirm.
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 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.
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
Sholar pled not guilty, and in April 2012 his case went to
trial. Both victims testified. During E.C.'s testimony,
the jury heard:
• 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. 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
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.
E.C.'s testimony also revealed:
• 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, " and another girl whose name E.C. could not
• 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.
• 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.
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 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.
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.
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 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
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." 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
• 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 showed up
at her parents' home looking for S.G. and threatened her
• 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
• 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, 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 ...