SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 19, 2018
Circuit Court Waukesha County L.C. No. 2012CF547 Michael O.
OF DECISION OF THE COURT OF APPEALS Reported at 376 Wis.2d
524, 900 N.W.2d 343
the defendant-respondent-petitioner, there were briefs filed
by Tracey A. Wood, Sarah M. Schmeiser, and Tracey Wood &
Associates, Madison. There was an oral argument by Anthony
the plaintiff-appellant, there was a brief filed by Sarah L.
Burgundy, assistant attorney general, and Brad D. Schimel,
attorney general. There was an oral argument by Sarah L.
amicus curiae brief was filed on behalf of Wisconsin
Association of Criminal Defense Lawyers by Robert R. Henak
and Henak Law Office, S.C., Milwaukee.
A jury convicted Anthony R. Pico of sexually assaulting a
young girl. Mr. Pico believes there is a reasonable
probability that, absent his trial counsel's alleged
constitutional ineffectiveness, this conviction would not
have occurred. The circuit court agreed, and so set aside his
conviction. The court of appeals did not agree, and so
reinstated the conviction.
Mr. Pico asked us to review his case because he believes the
court of appeals did not properly defer to the circuit
court's findings of fact when conducting the ineffective
assistance of counsel analysis required by Strickland v.
Washington, 466 U.S. 668 (1984) . The State, on the
other hand, believes the court of appeals decided the matter
correctly and that it was the circuit court that erred when
it allowed an expert to testify about the reasonableness of
defense counsel's representation. Finally, Mr. Pico
argues that if we agree with the State, then we should send
the case back to the circuit court because his sentence was
improperly enhanced based on his continued assertion of
innocence during the sentencing phase of this matter.
These arguments call on us to review the following three
issues. First, whether the court of appeals improperly
substituted the circuit court's findings of fact with its
own when it assessed the sufficiency of trial counsel's
performance. Second, whether an expert witness may testify
about the reasonableness of trial counsel's performance.
And third, whether the circuit court improperly relied on Mr.
Pico's lack of remorse when it fashioned his sentence.
With respect to the first issue, we conclude that the court
of appeals conducted the Strickland analysis
properly and that Mr. Pico's trial counsel performed as
required by the constitution. As to the second, we hold that
expert testimony at a Machner hearing regarding
the reasonableness of trial counsel's performance is not
admissible. And finally, we hold that the circuit court did
not err when it imposed sentence on Mr. Pico.
D.T., a primary-school student, said Mr. Pico put his hand
inside her pants and touched her vagina twice while he was
volunteering in her classroom. She reported the incident to
her mother that evening (a Friday), who in turn informed
D.T.'s school the following Monday. Upon learning of the
incident, D.T.'s school contacted the police.
Detective Andrew Rich met Mr. Pico in his home to investigate
the event. During at least part of the interview, Detective
Rich used what is known as the "Reid technique."
This technique involves telling the interviewee that law
enforcement officials have certain incriminating evidence
(which they do not, in fact, have), in the hope that the
interviewee will disclose factually accurate details about
the event in question. For example, while discussing the
event with Mr. Pico (and without identifying D.T. as the
victim), Detective Rich told Mr. Pico that there were video
cameras in the classroom, that male DNA had been found on the
victim's clothing in the area she said she was touched,
and that another student had "partially
substantiated" the complainant's allegation. None of
that was true, but when asked if any of this made sense to
him, Mr. Pico stated "[y]eah, I remember." Mr. Pico
then provided D.T.'s name and described how he
"tickled" and massaged her leg. Further questioning
resulted in Mr. Pico's acknowledgement that, in the
course of this behavior, he had moved his hand under her
pants, but claimed it was inadvertent. Detective Rich accused
Mr. Pico of putting his hand down D.T.'s pants twice and
that he had done so "intentionally rather than just by
mistake." Mr. Pico responded "I don't know. I
don't-I don't recall ever doing it the second time,
but it shouldn't have happened the first time,
right." And when Detective Rich suggested that,
"[o]nce you walked out of that class I bet you
were-well, you were probably just sick to your stomach,
" Mr. Pico responded "Yes."
The State charged Mr. Pico with one count of first-degree
sexual assault of D.T., contrary to Wis.Stat. §§
948.02(1) (e) and 939.50(3) (b) (2011-12). The case went to
trial, following which the jury found Mr. Pico guilty as
charged. He received his sentence in due course, during which
the circuit court commented on Mr. Pico's lack of
What I mean when I say that is acknowledging your conduct ...
I will consider whether or not you demonstrate remorse as a
part of my sentence.
I'm offended that you don't have the courage to
recognize, and don't give me a half story of I touched
her but not enough, I didn't touch her in the way she
said. I don't accept it, Mr. Pico. That's half a
Mr. Pico filed a postconviction motion seeking a new trial
and resentencing, asserting that his trial counsel provided
constitutionally-inadequate assistance because, inter alia,
he failed to investigate an old brain trauma. Twenty years
before these events, Mr. Pico had suffered a motorcycle
accident that resulted in an injury to the frontal lobe of
his brain. The injury caused Mr. Pico to experience double
vision, for which he still wears an eyepatch. The eyepatch,
Mr. Pico says, should have alerted trial counsel to the need
to investigate his mental capacity. That investigation, he
claims, would have led to his medical records, and the
records would have caused a reasonable attorney to suggest to
his client that he may wish to consider a plea of not guilty
by reason of mental disease or defect. Mr. Pico believes
the records also would have provided support for a motion to
suppress the statements he made to Detective Rich because the
injury left him unusually susceptible to the "Reid
technique" Detective Rich had used.
Mr. Pico's motion also claimed his counsel was
ineffective because of several alleged errors during the
course of his trial. He says his trial counsel should have
presented an expert to establish that the "Reid
technique" can produce false confessions. Additionally,
he faults his counsel for not presenting an expert witness in
response to Ms. Sarah Flayter, a child advocacy interviewer,
who testified for the State about her forensic interview of
D.T. He also believes his counsel should have objected to
some of Detective Rich's trial testimony, as well as to
some of the statements Detective Rich made during Mr.
Pico's recorded interview, which were played for the
jury. Further, he faulted trial counsel for not introducing
evidence that D.T. had just learned about "good
touches" and "bad touches" in school. And
finally, he thinks his counsel should have called Mr.
Pico's wife as a witness to explain that their daughter
has a sensory disorder and that they have learned that
massaging her leg calms her.
The postconviction motion's final assignment of error
relates to the alleged enhancement of Mr. Pico's sentence
for failing to show remorse. He did not show remorse, Mr.
Pico says, because he is innocent of the crime for which he
was convicted. Increasing the sentence of a defendant who
does not demonstrate remorse because he maintains his
innocence, he argues, comprises punishment for exercising his
right to remain silent.
The circuit court conducted a Machner hearing at
which it received testimony from several witnesses, including
Mr. Pico's trial counsel and an attorney who testified
about the reasonableness of trial counsel's
representation. The circuit court concluded that Mr.
Pico's counsel had performed deficiently and, although
none of the errors standing alone prejudiced Mr. Pico, the
cumulative effect was to deny him the effective assistance of
counsel. Consequently, the court vacated the conviction.
The State appealed, arguing that Mr. Pico's counsel had
not provided ineffective assistance. The State also asserted
it was improper for the defendant to introduce expert
testimony on the reasonableness of defense counsel's
performance for purposes of the Strickland analysis.
The court of appeals reversed the circuit court and
reinstated Mr. Pico's conviction because it determined
that trial counsel's representation was not deficient.
However, it did not address the Strickland expert
testimony question, nor did it address Mr. Pico's
sentencing claim because he did not raise the issue in a
We granted Mr. Pico's petition for review, and now
STANDARD OF REVIEW
An ineffective assistance of counsel claim presents a mixed
question of fact and law. State v. Tourville, 2016
WI 17, ¶16, 367 Wis.2d 285, 876 N.W.2d 735. We will not
reverse the circuit court's findings of fact unless they
are clearly erroneous. Id. "Findings of fact
include 'the circumstances of the case and the
counsel's conduct and strategy.'" State v.
Thiel, 2003 WI 111, ¶21, 264 Wis.2d 571, 665 N.W.2d
305 (citation omitted). We independently review, as a matter
of law, whether those facts demonstrate ineffective
assistance of counsel. Id.
The imposition of a criminal sentence involves the circuit
court's exercise of discretion. We apply the
"erroneous exercise of discretion" standard in
reviewing such decisions. State v. Loomis, 2016 WI
68, ¶30, 371 Wis.2d 235, 881 N.W.2d 749 ("'This
court reviews sentencing decisions under the erroneous
exercise of discretion standard.'" (citation
omitted)). "An erroneous exercise of discretion occurs
when a circuit court imposes a sentence 'without the
underpinnings of an explained judicial reasoning
process.'" Id. (citation omitted).
"Whether to admit proffered expert testimony rests in
the circuit court's discretion." State v.
LaCount, 2008 WI 59, ¶15, 310 Wis.2d 85, 750 N.W.2d
780 (internal quotation marks omitted) (quoting State v.
Shomberg, 2006 WI 9, ¶10, 288 Wis.2d 1, 709 N.W.2d
370) . "[O]ur review of a circuit court's use of its
discretion is deferential, and we apply the erroneous
exercise of discretion standard." LaCount, 310
Wis.2d 85, ¶15. We will not overturn the circuit
court's exercise of discretion so long as the decision
"had 'a reasonable basis, ' and if the decision
was made 'in accordance with accepted legal standards and
in accordance with the facts of record.'"
Id. (citation omitted). We may also "search the
record for reasons to sustain the circuit court's
exercise of discretion." Id.
We begin our analysis with Mr. Pico's argument that the
court of appeals supplanted the circuit court's role as
the finder of fact in the Machner hearing. We then
consider the admissibility of expert testimony regarding the
reasonableness of defense counsel's performance. Finally,
we address Mr. Pico's argument that the circuit court
imposed a harsher sentence on him because he refused to admit
Ineffective Assistance of Counsel
We review Mr. Pico's ineffective assistance of counsel
claim because he says the court of appeals did not properly
distinguish between findings of fact and conclusions of law
when it conducted the Strickland analysis.
Specifically, he says that the court of appeals
"disagreed with every one of [the circuit court's]
findings and substituted its own findings of fact and weight
to be placed on the evidence." Of the many reasons Mr.
Pico believes his counsel was constitutionally ineffective,
the most significant is his insistence that trial counsel
should have explored Mr. Pico's mental capacity further
than he did. We will address this assignment of error in some
detail as a means of exploring the method by which the court
of appeals reviewed the circuit court's decision. Then we
will consider whether the court of appeals deviated from that
methodology as it addressed the remaining claims of defective
The "effective assistance of counsel" is a right
vouchsafed to every criminal defendant by the Sixth Amendment
to the United States Constitution. Strickland, 466
U.S. at 686. A defendant is denied that right when his
counsel performs deficiently, and the deficiency prejudices
his trial. See State v. Pitsch, 124 Wis.2d 628, 633,
369 N.W.2d 711 (1985); see also Strickland, 466 U.S.
The first prong of the Strickland analysis requires
us to compare counsel's performance to the "wide
range of professionally competent assistance."
Strickland, 466 U.S. at 690. Only if his conduct
falls outside that objectively reasonable range will we
conclude that counsel performed deficiently. Thiel,
264 Wis.2d 571, ¶19. "The question is whether an
attorney's representation amounted to incompetence under
prevailing professional norms, not whether it deviated from
best practices or most common custom." Harrington v.
Richter, 562 U.S. 86, 88 (2011) . We presume that
counsel's assistance fell within that range.
Strickland, 466 U.S. at 689 ("[A] court must
indulge a strong presumption that counsel's conduct falls
within the wide range of reasonable professional assistance .
. . .") .
To show prejudice (the second prong), a defendant must
establish "'a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.'"
Pitsch, 124 Wis.2d at 642 (quoting
Strickland, 466 U.S. at 694) . "A reasonable
probability is a probability sufficient to undermine
confidence in the outcome." Strickland, 466
U.S. at 694. A lack of confidence arises when
"'counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is
reliable.'" Lockhart v. Fretwell, 506 U.S.
364, 369 (1993) (quoting Strickland, 466 U.S. at
687) . The court need not address this prong if the
petitioner fails to satisfy the first prong.
Strickland, 466 U.S. at 697 ("[T]here is no
reason for a court deciding an ineffective assistance claim
to approach the inquiry in the same order or even to address
both components of the inquiry if the defendant makes an
insufficient showing on one."); State v.
Carter, 2010 WI 40, ¶21, 324 Wis.2d 640, 782 N.W.2d
695 ("to succeed on [a] claim of ineffective assistance
of counsel, [the defendant] must satisfy both prongs of the
Trial Counsel's Duty to Investigate
Mr. Pico says his eyepatch, along with his confusion during
his interview with Detective Rich, should have caused trial
counsel to investigate his mental capacity. If he had done
so, Mr. Pico argues, his counsel would have discovered the
significance of his head injury, which would have, in turn,
caused counsel to suspect it may have compromised his mental
capacity. Mr. Pico believes his compromised condition may
have prevented him from forming the intent necessary to
support a criminal conviction. If trial counsel had known
this, Mr. Pico concludes, his counsel would have advised him
on the possibility of entering a plea of not guilty by reason
of mental disease or defect. Mr. Pico also says his injury
makes him unusually susceptible to suggestion. Therefore,
even if a plea of not guilty by reason of mental disease or
defect had not been appropriate, this information could have
provided support for a motion to suppress the statements he
made to Detective Rich. Without the investigation, however,
neither of these strategic options were available.
The duty to investigate is certainly one of the components of
effective representation. "Counsel must either
reasonably investigate the law and facts or make a reasonable
strategic decision that makes any further investigation
unnecessary." State v. Domke, 2011 WI 95,
¶41, 337 Wis.2d 268, 805 N.W.2d 364. We review the
reasonableness of trial counsel's decisions not with the
benefit of hindsight, but in the context of the circumstances
as they existed at the time he made his decisions. "We
must consider the law and the facts as they existed
when trial counsel's conduct occurred." State v.
Felton, 110 Wis.2d 485, 502-03, 329 N.W.2d 161 (1983)
(emphasis added); see also Strickland, 466 U.S. at
689 ("A fair assessment of attorney performance requires
that every effort be made to eliminate the distorting effects
of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time."). So we
examine the circumstances as if we were encountering them
just as trial counsel did, making every effort to ensure our
knowledge of the present does not affect how we assess what
was known to him at the time. Therefore, we begin with a
precis of pre-trial facts.
Mr. Pico's counsel acknowledged that he had been aware of
Mr. Pico's head injury since his first meeting with him.
He said the intake process for new clients includes a
discussion of the client's medical conditions and
diagnosis. During this process, he asked Mr. Pico about his
eye patch. Mr. Pico described his motorcycle accident and
head injury, but indicated he had recovered. His counsel said
he subsequently discussed this injury with both Mr. Pico and
his family. No one mentioned any lingering effects of the
accident (other than the double vision), nor did anyone say
it had affected Mr. Pico's behavior. To the contrary, Mr.
Pico's family described him as a great father and a
well-adjusted individual who was productively involved in his
community. Trial counsel observed nothing about Mr.
Pico's conduct to call any of those characterizations
Mr. Pico now claims his confusion and nervousness during the
interview with Detective Rich should have been enough to
inform his counsel that his mental capacity was questionable.
Trial counsel witnessed that behavior when he reviewed the
recorded interview, and he discussed it with Mr. Pico. But
Mr. Pico did not connect his conduct to his head injury.
Instead, he said that when Detective Rich arrived at his
home, he was confused because he thought perhaps one of his
children might have been involved in an emergency situation.
So trial counsel attributed Mr. Pico's confusion and
nervousness to the surprising nature of Detective Rich's
visit and the fact that he was being questioned about a very
At the Machner hearing, Mr. Pico presented Dr.
Horace Capote, a neuropsychiatrist, to explain the
significance of the head trauma he had suffered in the
motorcycle accident. Dr. Capote said Mr. Pico's records
reflect that he had been diagnosed with "frontal lobe
syndrome, " the symptoms of which include deficits in
cognitive, emotional, and behavioral functioning. Mrs. Pico
testified at the Machner hearing that Mr. Pico shuts
down when faced with frustration, that he often tells the
same long, boring stories, that he avoids confrontation, and
that he often gives in to what others want. Dr. Capote said
this is consistent with frontal lobe syndrome.
Mr. Pico's post-hoc explanations about the seriousness of
his head injury, however, miss the point. An investigation
into a client's mental capacity is unwarranted unless the
information known before trial suggests the need for
such an exploration. Mr. Pico's presentation at the
Machner hearing did not provide the type of
information necessary for the court to assess the
reasonableness of trial counsel's decision not to pursue
that investigation. His expert, Dr. Capote, never examined
him. Instead, he based his testimony on a review of
20-year-old records. Therefore, Dr. Capote could offer no
opinion about whether behavior contemporaneous with Mr.
Pico's criminal charge could have informed a reasonable
attorney of the need to investigate his client's mental
capacity. Had the information presented by Dr. Capote been
known to Mr. Pico's counsel prior to trial, it may have
been enough to require him to further investigate Mr.
Pico's mental capacity. But the important point here is
that it was not known to counsel before trial. If we
were to apply that information retrospectively to evaluate
counsel's pre-trial strategic decisions, we would be
doing exactly what Strickland prohibits, to wit,
evaluating counsel's performance with the
"distorting effects of hindsight[.]"
Strickland, 466 U.S. at 689.
The information available to Mr. Pico's counsel before
trial was much more limited than what Mr. Pico presented at
the Machner hearing. He knew that Mr. Pico
experienced double vision as the result of a motorcycle
accident, and that he was flustered when questioned by the
police about a very serious crime. Mr. Pico expects these two
facts to carry more weight than they can bear. "In
evaluating counsel's decision not to investigate, this
court must assess the decision's reasonableness in light
of 'all the circumstances, ' 'applying a heavy
measure of deference to counsel's judgments.'"
Carter, 324 Wis.2d 640, ¶23 (quoting
Strickland, 466 U.S. at 691) . Double vision and
nervousness during a police interview, alone, are
insufficient to suggest there may be a need to investigate
the defendant's mental capacity. There is nothing in the
record suggesting double vision interferes with (or impacts
or affects or alters) mental capacity. And nervousness under
these circumstances could be the result of any number of
factors that have nothing to do with a brain injury.
Accordingly, we conclude that trial counsel's decision
not to further investigate Mr. Pico's mental capacity was
reasonable and fell within the "wide range of
professionally competent assistance."
Strickland, 466 U.S. at 690. In the absence of the
investigation, there was no basis for Mr. Pico's attorney
to counsel Mr. Pico on the advisability of a plea of not
guilty by reason of mental disease or defect. Nor was there a
basis for a motion to suppress the statements Mr. Pico made
to Detective Rich. This necessarily means trial counsel could
not have performed deficiently with respect to those topics
because an attorney does not perform deficiently when he
chooses not to pursue tactics that lack factual or legal
support. See State v. Cameron, 2016 WI.App. 54,
¶27, 370 Wis.2d 661, 885 N.W.2d 611 ("It is not
deficient performance for counsel not to make a pointless
objection."); see also State v. Jacobsen, 2014
WI.App. 13, ¶49, 352 Wis.2d 409, 842 N.W.2d 365
("An attorney does not perform deficiently by failing to
make a losing argument."); State v. Swinson,
2003 WI.App. 45, ¶59, 261 Wis.2d 633, 660 N.W.2d 12
("Trial counsel's failure to bring a meritless
motion does not constitute deficient performance.");
State v. Toliver, 187 Wis.2d 346, 360, 523 N.W.2d
113 (Ct. App. 1994) ("[Defendant] has failed to show
that trial counsel's performance was deficient and thus,
we determine his ineffective assistance of counsel claim is
We arrive at the same conclusion as the court of appeals with
respect to trial counsel's duty to investigate. But more
importantly for the issue at hand, we see no error in the
court of appeals' methodology in reaching that
As we conducted each step of our analysis, we kept careful
watch for any of the circuit court's factual findings
that would impede or contradict our (or the court of
appeals') reasoning. We identified only one (more about
that in a moment) . In all other instances, Mr. Pico's
claim that the court of appeals simply ignored the circuit
court's findings of fact in favor of its own is
unsupported by the record. Instead, his argument indicates he
mistook the circuit court's conclusions of law for
findings of fact. Thus, he says the circuit court
"found" that his counsel should have investigated
his injury because it would have a significant effect on his
case, so he concluded the court of appeals improperly
rejected that "finding" when it concluded no such
investigation was necessary. Similarly, he says the court of
appeals "found because there was no proof the family or
Pico told [his counsel] about the significance of the brain
damage, he had no duty to investigate or raise the issue in
any way." Further, he argues the court of appeals
"disregarded the [circuit court's] factual finding
that the attorney decided not to investigate, and that
deficiency led to the conviction."
A court's factual findings address the "who, what,
when, and where" of a case. In the specific context
of an ineffective assistance of counsel claim,
"[f]indings of fact include 'the circumstances of
the case and the counsel's conduct and
strategy.'" Thiel, 264 Wis.2d 571, ¶21
(citation omitted). The court of appeals is duty-bound to
defer to those factual findings unless they are clearly
Thiel's reference to "counsel's conduct
and strategy, " however, does not encompass the wisdom
or constitutional sufficiency of that conduct or strategy.
Thiel contemplates a simple accounting of historical
events: What did counsel do, and what strategy did he employ?
Whether the factual description of counsel's strategy and
conduct add up to deficient performance is a question of law
that is subject to de novo review. "The questions of
whether counsel's behavior was deficient and whether it
was prejudicial to the defendant are questions of law, and we
do not give deference to the decision of the circuit
court." Pitsch, 124 Wis.2d at 634; see also
State v. Knight, 168 Wis.2d 509, 514 n.2, 484 N.W.2d 540
(1992) ("The final determination of whether