State v. Anthony R. Pico

2018 WI 66

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

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(2017 – unpublished)

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

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

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

ATTORNEYS:

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

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

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

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Appellant,
FILED
v. JUN 15, 2018

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

Defendant-Respondent-Petitioner.

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

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

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

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

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

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

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

reinstated the conviction.3

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

believes the court of appeals did not properly defer to the

circuit court's findings of fact when conducting the ineffective

assistance of counsel analysis required by Strickland v.

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

believes the court of appeals decided the matter correctly and

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

expert to testify about the reasonableness of defense counsel's

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

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

court because his sentence was improperly enhanced based on his

continued assertion of innocence during the sentencing phase of

this matter.

¶3 These arguments call on us to review the following

three issues. First, whether the court of appeals improperly

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

Second, whether an expert witness may testify about the

reasonableness of trial counsel's performance. And third,

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

2
 No. 2015AP1799-CR

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

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

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

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

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

hold that expert testimony at a Machner4 hearing regarding the

reasonableness of trial counsel's performance is not admissible.

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

imposed sentence on Mr. Pico.

I. BACKGROUND

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

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

volunteering in her classroom. She reported the incident to her

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

school the following Monday. Upon learning of the incident,

D.T.'s school contacted the police.

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

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

technique involves telling the interviewee that law enforcement

officials have certain incriminating evidence (which they do

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

disclose factually accurate details about the event in question.

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

4
Machner, 92 Wis. 2d 797.

3
 No. 2015AP1799-CR

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

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

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

she was touched, and that another student had "partially

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4
 No. 2015AP1799-CR

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

. . . .

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

trial and resentencing, asserting that his trial counsel

provided constitutionally-inadequate assistance because, inter

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

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

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

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

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

says, should have alerted trial counsel to the need to

investigate his mental capacity. That investigation, he claims,

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

have caused a reasonable attorney to suggest to his client that

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

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

have provided support for a motion to suppress the statements he

made to Detective Rich because the injury left him unusually

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

5
 No. 2015AP1799-CR

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

ineffective because of several alleged errors during the course

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

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

false confessions. Additionally, he faults his counsel for not

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

child advocacy interviewer, who testified for the State about

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

should have objected to some of Detective Rich's trial

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

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

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

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

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

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

their daughter has a sensory disorder and that they have learned

that massaging her leg calms her.

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

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

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

convicted. Increasing the sentence of a defendant who does not

demonstrate remorse because he maintains his innocence, he

6
 No. 2015AP1799-CR

argues, comprises punishment for exercising his right to remain

silent.7

¶10 The circuit court conducted a Machner hearing at which

it received testimony from several witnesses, including Mr.

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

reasonableness of trial counsel's representation. The circuit

court concluded that Mr. Pico's counsel had performed

deficiently and, although none of the errors standing alone

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

effective assistance of counsel. Consequently, the court

vacated the conviction.

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

had not provided ineffective assistance. The State also

asserted it was improper for the defendant to introduce expert

testimony on the reasonableness of defense counsel's performance

for purposes of the Strickland analysis. The court of appeals

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

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

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

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

7
 No. 2015AP1799-CR

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

appeal.

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

affirm.

II. STANDARD OF REVIEW

¶13 An ineffective assistance of counsel claim presents a

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

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

circuit court's findings of fact unless they are clearly

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

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

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

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

law, whether those facts demonstrate ineffective assistance of

counsel. Id.

¶14 The imposition of a criminal sentence involves the

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

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

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

erroneous exercise of discretion standard.'" (citation

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

circuit court imposes a sentence 'without the underpinnings of

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

omitted).

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

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

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

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

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

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

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

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

decision was made 'in accordance with accepted legal standards

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

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

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

III. ANALYSIS

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

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

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

admissibility of expert testimony regarding the reasonableness

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

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

A. Ineffective Assistance of Counsel

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

claim because he says the court of appeals did not properly

distinguish between findings of fact and conclusions of law when

it conducted the Strickland analysis. Specifically, he says

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

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

reasons Mr. Pico believes his counsel was constitutionally

ineffective, the most significant is his insistence that trial

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

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

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

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

consider whether the court of appeals deviated from that

methodology as it addressed the remaining claims of defective

performance.

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

vouchsafed to every criminal defendant by the Sixth Amendment to

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

defendant is denied that right when his counsel performs

deficiently, and the deficiency prejudices his trial. See State

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

Strickland, 466 U.S. at 687.

¶19 The first prong of the Strickland analysis requires us

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

690. Only if his conduct falls outside that objectively

reasonable range will we conclude that counsel performed

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

whether an attorney's representation amounted to incompetence

under prevailing professional norms, not whether it deviated

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

10
 No. 2015AP1799-CR

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

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

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

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

conduct falls within the wide range of reasonable professional

assistance . . . .").

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

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

unprofessional errors, the result of the proceeding would have

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

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

probability sufficient to undermine confidence in the outcome."

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

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

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

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

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

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

ineffective assistance claim to approach the inquiry in the same

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

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

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

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

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

11
 No. 2015AP1799-CR

1. Trial Counsel's Duty to Investigate

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

during his interview with Detective Rich, should have caused

trial counsel to investigate his mental capacity. If he had

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

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

caused counsel to suspect it may have compromised his mental

capacity. Mr. Pico believes his compromised condition may have

prevented him from forming the intent necessary to support a

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

concludes, his counsel would have advised him on the possibility

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

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

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

guilty by reason of mental disease or defect had not been

appropriate, this information could have provided support for a

motion to suppress the statements he made to Detective Rich.

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

¶22 The duty to investigate is certainly one of the

components of effective representation. "Counsel must either

reasonably investigate the law and facts or make a reasonable

strategic decision that makes any further investigation

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

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

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

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

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

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

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

of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct

the circumstances of counsel's challenged conduct, and to

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

So we examine the circumstances as if we were encountering them

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

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

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

pre-trial facts.

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

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

said the intake process for new clients includes a discussion of

the client's medical conditions and diagnosis. During this

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

he had recovered. His counsel said he subsequently discussed

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

any lingering effects of the accident (other than the double

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

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

father and a well-adjusted individual who was productively

involved in his community. Trial counsel observed nothing about

13
 No. 2015AP1799-CR

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

question.

¶24 Mr. Pico now claims his confusion and nervousness

during the interview with Detective Rich should have been enough

to inform his counsel that his mental capacity was questionable.

Trial counsel witnessed that behavior when he reviewed the

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

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

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

confused because he thought perhaps one of his children might

have been involved in an emergency situation. So trial counsel

attributed Mr. Pico's confusion and nervousness to the

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

was being questioned about a very serious crime.9

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

Capote, a neuropsychiatrist, to explain the significance of the

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

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

14
 No. 2015AP1799-CR

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

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

include deficits in cognitive, emotional, and behavioral

functioning. Mrs. Pico testified at the Machner hearing that

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

tells the same long, boring stories, that he avoids

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

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

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

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

into a client's mental capacity is unwarranted unless the

information known before trial suggests the need for such an

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

not provide the type of information necessary for the court to

assess the reasonableness of trial counsel's decision not to

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

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

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

criminal charge could have informed a reasonable attorney of the

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

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

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

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

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

trial. If we were to apply that information retrospectively to
evaluate counsel's pre-trial strategic decisions, we would be
15
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doing exactly what Strickland prohibits, to wit, evaluating

counsel's performance with the "distorting effects of

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

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

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

Machner hearing. He knew that Mr. Pico experienced double

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

flustered when questioned by the police about a very serious

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

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

investigate, this court must assess the decision's

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

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

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

Double vision and nervousness during a police interview, alone,

are insufficient to suggest there may be a need to investigate

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

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

circumstances could be the result of any number of factors that

have nothing to do with a brain injury.

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

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

reasonable and fell within the "wide range of professionally

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

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

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

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

Detective Rich. This necessarily means trial counsel could not

have performed deficiently with respect to those topics because

an attorney does not perform deficiently when he chooses not to

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

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

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

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

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

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

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

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

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

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

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

performance was deficient and thus, we determine his ineffective

assistance of counsel claim is meritless.").
*

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

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

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

the court of appeals' methodology in reaching that conclusion.

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

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

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

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

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

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

his argument indicates he mistook the circuit court's

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

circuit court "found" that his counsel should have investigated

his injury because it would have a significant effect on his

case, so he concluded the court of appeals improperly rejected

that "finding" when it concluded no such investigation was

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

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

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

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

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

finding that the attorney decided not to investigate, and that

deficiency led to the conviction."

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

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

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

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

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

18
 No. 2015AP1799-CR

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

findings unless they are clearly erroneous.

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

however, does not encompass the wisdom or constitutional

sufficiency of that conduct or strategy. Thiel contemplates a

simple accounting of historical events: What did counsel do,

and what strategy did he employ? Whether the factual

description of counsel's strategy and conduct add up to

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

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

deficient and whether it was prejudicial to the defendant are

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

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

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

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

deficient and prejudiced the defense are questions of law,

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

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

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

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

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

determine whether trial counsel's investigation should have been

more extensive by applying the legal standard to the known

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

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

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

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

deference to the circuit court because this is a question of

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

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

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

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

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

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

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

It applied the standard (reasonable investigation) to the fact

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

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

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

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

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

decided not to investigate, and that deficiency led to the

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

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

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

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

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

to the circuit court.

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

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

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

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

family. That finding was clearly erroneous because the

transcript from the Machner hearing unequivocally demonstrates

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

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

¶46 n.6 (Wis. Ct. App. May 10, 2017).

2. Defense Counsel's Trial Performance

¶35 Mr. Pico also believes he received ineffective

assistance of counsel because of how his counsel conducted his

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

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

of motions in limine to prevent the exploration of some topics

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

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

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

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

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

will address each in turn.11

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

suppress the statements he made during the police interview

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

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

21
 No. 2015AP1799-CR

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

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

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

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

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

court's exercise of judgment in applying the appropriate legal

standard to the circumstances comprising Detective Rich's

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

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

argument depends on his injury-induced susceptibility to the

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

no duty to investigate this injury, and without that information

the suppression motion would have been baseless. The court of

appeals correctly concluded such a motion would not have been

successful.

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

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

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

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

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

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

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

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

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

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

fact established that trial counsel should have called such an

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

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

presented expert testimony on these topics is actually the

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

It is a hypothetical conclusion about a potential outcome

flowing from the application of a legal standard to an

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

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

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

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

about the expected result of a hypothetical trial.

¶38 Finally, Mr. Pico is concerned about certain

statements introduced at trial that he believes improperly

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

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

failure to file a motion in limine to protect against such

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

improperly "substituted its beliefs for those of the judge who

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

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

constitutionally deficient is a question of law, not fact.

"Listening to testimony" is essential to the project of

accurately finding facts; deciding questions of law can be done

just as well by appellate tribunals.

23
 No. 2015AP1799-CR

¶39 Our review confirms that the court of appeals properly

distinguished between findings of fact and conclusions of law.

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

role when it concluded that trial counsel did not perform

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

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

ineffective assistance of counsel. The court of appeals wrote

an extensive and well-reasoned opinion addressing each of those

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

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

its reasoning on these claims as our own. Because trial

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

Mr. Pico did not receive ineffective assistance of counsel

without addressing the "prejudice" prong of the Strickland

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

for a court deciding an ineffective assistance claim to approach

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

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

24
 No. 2015AP1799-CR

of the inquiry if the defendant makes an insufficient showing on

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

of ineffective assistance of counsel, [the defendant] must

satisfy both prongs of the Strickland test.").

B. Expert Strickland Testimony

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

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

reasonable attorney versed in the criminal law would and should

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

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

opinion testimony and provides:

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

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

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

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

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

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

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

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

25
 No. 2015AP1799-CR

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

duplicative. Nor was his purpose to provide a historical

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

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

the court was incapable of understanding on its own. That

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

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

reasonable attorney should have under those circumstances.

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

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

trial counsel's performance. Expert testimony is admissible to

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

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

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

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

regarding an attorney's ethical obligations is unnecessary

because such obligations are questions of law reviewed de novo

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

rule an expert's testimony on issues of law is

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

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

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

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

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

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

no matter how well qualified, generally should not be permitted

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

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

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

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

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

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

witness cannot instruct the court with respect to the applicable

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

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

is not a descriptive statement, but a normative one.

Interpreting and applying the law to the facts of a particular

case is the judiciary's responsibility, a responsibility it

shares with no other when acting in its judicial capacity.

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

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

more fundamental than the judiciary's exclusive responsibility

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

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

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

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

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

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

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

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

judge the reasonableness of counsel's challenged conduct on the

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

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

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

questions of whether counsel's behavior was deficient and

whether it was prejudicial to the defendant are questions of

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

court.").

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

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

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

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

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

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

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

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

the reasonableness of how counsel handled the defense is

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

¶45 Consequently, we hold that expert testimony about the

"reasonableness" of counsel's performance is inadmissible

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

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

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

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

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

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

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

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

Eleventh Circuit Court of Appeals:

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

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

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

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

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

postconviction counsel frankly acknowledged the expert witness

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

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

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

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

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

its potential impacts would have been beneficial to the case;

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

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

29
 No. 2015AP1799-CR

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

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

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

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

have objected to certain statements that amounted to "witness

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

not believe trial counsel provided constitutionally adequate

representation.

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

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

addressed some of the very topics on which the expert witness

provided testimony. We said they presented questions of law,

and there is no reason to reconsider that conclusion in

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

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

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

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

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

fact. Because this testimony addressed questions of domestic

law, it was inadmissible. We conclude that Strickland expert

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

extent the expert focuses on factual matters and does not offer

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

strategy.

30
 No. 2015AP1799-CR

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

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

right against self-incrimination by increasing the severity of

his sentence because he maintained his innocence at the

sentencing hearing.13 We review a sentencing decision for an

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

31
 No. 2015AP1799-CR

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

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

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

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

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

32
 No. 2015AP1799-CR

error, the defendant must prove "by clear and convincing

evidence, that the sentencing court actually relied on

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

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

defendant establish both that the factor was improper or

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

¶49 The Fifth Amendment guarantees a criminal defendant

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

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

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

sentencing, although a defendant may waive his Fifth Amendment

right against self-incrimination in a bid for a lighter

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

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

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

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

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

and it receives no undue consideration:

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

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

33
 No. 2015AP1799-CR

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

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

(1977) (observing that circuit courts commit reversible error

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

defendant's refusal to admit guilt.").

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

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

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

history, the seriousness of the offense, the presentencing

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

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

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

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

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

. . . .

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

34
 No. 2015AP1799-CR

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

which we concluded the circuit court had improperly relied on

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

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

my judgment that until you demonstrate some remorse, until you

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

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

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

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

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

used to justify incarceration rather than probation," and

because the court identified no other basis for imposing

incarceration, we reasoned that the "the procedure utilized at

sentencing was coercive and in derogation of Scales' Fifth

Amendment rights." Id. at 496-97.

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

circuit court in Scales explicitly linked the defendant's lack

of remorse to the decision to impose incarceration instead of

probation. Here, there is quite obviously no explicit link

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

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

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

35
 No. 2015AP1799-CR

face value, that is an entirely appropriate and unremarkable

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

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

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

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

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

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

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

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

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

in the exercise of its sentencing discretion. Of the three

possibilities, only the second would be inappropriate. There is

a strong public policy against interfering with the trial

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

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

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

responsibility to demonstrate the circuit court used its

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

criminal defendant challenges the sentence imposed by the

circuit court, the defendant has the burden to show some

unreasonable or unjustifiable basis in the record for the

sentence at issue.").

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

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

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

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

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

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

commenting on that letter, the court stated:

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

position, it does the opposite. This passage reflects the

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

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

bifurcated sentence of six years imprisonment followed by ten

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

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

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

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

Pico is not entitled to a new sentencing hearing.

IV. CONCLUSION

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

perform deficiently within the meaning of Strickland. We also

conclude that expert testimony at a Machner hearing regarding

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

37
 No. 2015AP1799-CR

the circuit court improperly relied on his lack of remorse in

fashioning his sentence, he is not entitled to resentencing.

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

affirmed.

38
 No. 2015AP1799-CR.rgb

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

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

addresses expert Strickland testimony.1 The majority says that

Strickland expert testimony is inadmissible at the Machner

hearing except "to the extent the expert focuses on factual

matters and does not offer his opinion on the reasonableness of

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

limitation could be misinterpreted as a total prohibition on

such testimony. It is not.

¶57 The majority stops short of explaining what it means

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

explanation to avoid any confusion. When a circuit court

determines the testimony of a Strickland expert would be

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

attorney could take in the same or similar circumstances. These

include "factual matters" such as alternate actions the

defendant's lawyer could have taken and different strategies

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

available to defense counsel under the particular facts and

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

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 No. 2015AP1799-CR.rgb

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

as to the ultimate question of law the circuit court must

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

whether the trial lawyer performed deficiently. That is a

question of law left to the circuit court.

¶58 Although expert criminal lawyer testimony is not

required at a Machner hearing, in certain cases the circuit

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

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

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

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

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

simply apply Strickland to the facts and circumstances presented

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

unfamiliar with the practice of criminal law or the case

presents factual features unfamiliar to even an experienced

judge, Strickland expert testimony at the Machner hearing would

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

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 No. 2015AP1799-CR.rgb

be helpful and the circuit court retains the discretion to hear

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

¶59 I respectfully concur.

¶60 I am authorized to state that Justice DANIEL KELLY

joins this concurrence.

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 No. 2015AP1799-CR.ssa

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

interview with law enforcement, the defendant gave equivocal

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

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

case, advancing a reasonable doubt defense instead of properly

investigating the defendant's frontal lobe injury amounted to

deficient performance. In my view, a reasonable probability

exists that but for trial counsel's failure to properly

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

the defendant's trial would have been different.

¶62 Accordingly, I dissent.1

I

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

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

investigate:

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

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

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 No. 2015AP1799-CR.ssa

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

investigate the law and facts or make a reasonable strategic

decision that makes any further investigation unnecessary."

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

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

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

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

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

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

trial counsel at the time counsel made the decision not to

further investigate the defendant's frontal lobe injury and

instead pursue a reasonable doubt defense:

• The defendant was interviewed by a detective four days

after the defendant visited his daughter's classroom.

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

• During that interview, the detective employed the Reid

technique, a technique that involves law enforcement

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

possess in order to induce the interviewee to disclose

factually accurate details about the events in

question.

• Pursuant to the Reid technique and without identifying

the victim, the detective told the defendant that a

student in his daughter's class had accused him of

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

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 No. 2015AP1799-CR.ssa

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

touched, and that another student had partially

substantiated the victim's allegation. Other than the

fact that the defendant had been accused of

inappropriately touching a student, none of what the

detective told the defendant was true.

• When the detective asked if anything the detective had

just said made any sense to the defendant, the

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

Although the detective never identified D.T. as the

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

detective and described how he "tickled" and massaged

D.T.'s leg.

• Further questioning by the detective resulted in the

defendant acknowledging that at some point while

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

hand under her pants. The defendant claimed that

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

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

that he touched her vagina twice. The defendant

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

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

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

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

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

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 No. 2015AP1799-CR.ssa

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

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

playing."

• In response, the detective accused the defendant of

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

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

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

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

time, right."

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

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

probably just sick to your stomach." The defendant

responded "Yes."

• Upon first meeting the defendant, trial counsel became

aware of the defendant's brain injury. The defendant

wears an eyepatch, and he explained to trial counsel

that he suffers from double vision as a result of a

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

before the events giving rise to the instant case.

• The defendant told trial counsel that he had fully

recovered from the accident, and neither the defendant

nor his family told counsel that they had observed any

behavior on the defendant's part that would indicate

that the defendant's brain injury affected the

defendant's behavior.

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 No. 2015AP1799-CR.ssa

• Trial counsel, without bothering to obtain any of the

defendant's medical records or consult with an expert

knowledgeable about the connection between brain

trauma and human behavior, chose not to further

investigate because trial counsel did not observe any

ongoing symptoms that he believed related to the

defendant's brain injury.

¶66 Under these circumstances, I conclude that trial

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

frontal lobe injury and instead pursue a reasonable doubt

defense constitutes deficient performance.

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

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

Asked about whether the defendant had twice touched the vagina

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

school just four days prior, the defendant identified the

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

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

majority is silent regarding the reasonableness of pursuing a

reasonable doubt defense in light of this damning evidence.2

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

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 No. 2015AP1799-CR.ssa

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

further investigation into the defendant's brain injury was

unreasonable under the circumstances. Both state and federal

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

to a duty for counsel to investigate further for neurological

damage that may impact the client's case.3

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

defendant suffered from double vision as a result of a traumatic

brain injury to his frontal lobe caused by a serious motorcycle

accident. Rather than consult with a neurologist about the

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

defendant's medical records, trial counsel instead stopped his

investigation after being told by the defendant and his family

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

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

discharge his duty to adequately investigate the defendant's

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

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

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

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 No. 2015AP1799-CR.ssa

under prevailing professional norms and was therefore

constitutionally deficient.4

II

¶71 In addition to proving that trial counsel's

performance was constitutionally deficient, the defendant must

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

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

a reasonable probability that, but for counsel's unprofessional

errors, the result of the proceeding would have been different."

Strickland, 466 U.S. at 694. "A reasonable probability under

the Strickland prejudice prong is a probability sufficient to

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

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

¶72 I conclude that the defendant has shown prejudice in

the instant case. Had trial counsel properly investigated the

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

defendant suffered from frontal lobe syndrome. Trial counsel

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

in IQ; deficits to cognitive, emotional, and behavioral

functioning; and abnormal impulsivity. Trial counsel also would

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

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 No. 2015AP1799-CR.ssa

have learned that symptoms of frontal lobe syndrome include the

tendency to not read social cues well. Had trial counsel

consulted a doctor regarding the defendant's brain injury and

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

would have corroborated) that, consistent with frontal lobe

syndrome, the defendant shuts down when faced with frustration,

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

confrontation.

¶73 Trial counsel's failure to properly investigate the

defendant's frontal lobe injury prejudiced the defendant in at

least two ways.

¶74 First, the information that would have been obtained

through a proper investigation would have supported a plea of

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

disastrous a reasonable doubt defense was under the

circumstances, pleading not guilty by reason of mental disease

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

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

evidence of the defendant's frontal lobe syndrome and its

symptoms to mitigate the effect of the inculpatory statements

made to the detective during the interview. Coupled with

testimony about the unreliable nature of the Reid technique and

its likelihood of producing false confessions,6 the defendant

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

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 No. 2015AP1799-CR.ssa

could have significantly mitigated the effect of his equivocal

statements regarding whether he had inappropriately touched D.T.

III

¶76 As our understanding of the connection between brain

trauma and criminal behavior develops, defense attorneys must be

on increased alert for red flags indicating neurological damage

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

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

defendant suffered a traumatic brain injury to his frontal lobe

but failed to properly and adequately investigate whether and to

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

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

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

fated reasonable doubt defense that was unreasonable under the

circumstances.

¶77 I would conclude that the defendant succeeded in

proving his claim of ineffective assistance of counsel and is

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

¶79 I am authorized to state that Justice ANN WALSH

BRADLEY joins this dissent.

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