State v. Michael James Brehm

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 29, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP266-CR Cir. Ct. No. 2018CF3239

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL JAMES BREHM,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: DAVID A. HANSHER, Judge. Affirmed.

Before Brash, P.J., Donald and White, JJ.

¶1 DONALD, J. Michael James Brehm appeals a judgment entered
after a guilty plea to one count of possession of a firearm by a felon and an order
denying postconviction relief. Brehm contends that he was improperly sentenced
to three years of initial confinement for being a felon in possession pursuant to
No. 2020AP266-CR

WIS. STAT. § 941.29(4m)(a) (2017-18).1 Brehm also contends that he is entitled to
an evidentiary hearing to determine whether trial counsel was ineffective for:
(1) failing to request a presentence investigation report (PSI); (2) failing to offer
evidence of Brehm’s alleged “non-possession” of the firearm; and (3) failing to
advise Brehm “not to make statements to his detriment.” We reject each of
Brehm’s arguments and affirm.

BACKGROUND

¶2 According to the criminal complaint, on July 7, 2018, one of
Brehm’s neighbors called 911 after seeing Brehm “holding a firearm out of the
upstairs window” and “discharging the firearm into the air.” Police found a 9mm
Glock handgun in Brehm’s apartment and spent 9mm casings at the scene. In a
Mirandized interview, Brehm admitted that he “shot a couple of rounds into the
air.”2 Brehm further explained that he “didn’t think for a couple of seconds” and
“didn’t have any bad intentions … I just had a dumb thought.”

¶3 Brehm entered a guilty plea to possession of a firearm by a felon.
This invoked the mandatory minimum penalty provision pursuant to WIS. STAT.
§ 941.29(4m)(a). Section (4m)(a) states that “[i]f a person commits a violation of
[the felon in possession statute], the court shall impose a bifurcated sentence …

1
All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless
otherwise noted.
2
See Miranda v. Arizona, 384 U.S. 436 (1966).

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and the confinement portion of the bifurcated sentence imposed on the person
shall be not less than [three] years[.]”3

¶4 On July 25, 2019, a sentencing hearing took place. At the beginning
of the hearing, the defense requested that the mandatory minimum of three years
of initial confinement be imposed but stayed for a term of probation and one year
of conditional jail time. The circuit court denied the request. The court stated that
“I’d like to do it, but I think the word ‘shall’ in reading the statute ties my
hand[s].”

¶5 The circuit court sentenced Brehm to the mandatory minimum of
three years of initial confinement followed by three years of extended supervision.

¶6 After sentencing, Brehm filed a postconviction motion. Brehm
argued that he was entitled to a sentence modification or a new sentencing hearing
because the circuit court erroneously believed it had to impose the mandatory
minimum and that WIS. STAT. § 941.29(4m)(a) was unconstitutionally overbroad.
Brehm also argued that he was entitled to an evidentiary hearing to withdraw his
plea based on ineffective assistance of counsel.

¶7 The circuit court denied Brehm’s motion without a hearing. Based
on the plain language of WIS. STAT. § 941.29(4m)(a), it concluded that “probation
was not an option[.]” The court also rejected Brehm’s claim that the statute was
overbroad, stating that his challenge was “unconvincing” and “underdeveloped.”

3
The mandatory minimum only applies if certain conditions are met, including that a
person was previously convicted of a “violent felony” and the person committed the current
offense within five years after “completing his or her sentence[.]” See WIS. STAT.
§ 941.29(4m)1. & 2.a. Brehm does not contest that the required conditions were satisfied in his
case.

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In addition, the court found that Brehm’s ineffective assistance of counsel claims
were “insufficiently pled” and his “conclusory allegations do not warrant an
evidentiary hearing.”

¶8 On appeal, Brehm renews the arguments he made in the circuit
court. As discussed below, we reject each of his arguments.

DISCUSSION

I. Mandatory Minimum

A. Plain Meaning of WIS. STAT. § 941.29(4m)(a)

¶9 According to Brehm, the circuit court could have imposed and
stayed a bifurcated sentence with three years of initial confinement and placed
Brehm on probation because WIS. STAT. § 941.29(4m)(a) is silent as to whether
the mandatory minimum can be stayed. We disagree.

¶10 When interpreting a statute, we start with the language of the statute.
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d
633, 681 N.W.2d 110. If the meaning of the words of a statute are plain, we stop
our inquiry and apply the words chosen by the legislature. Id. “Statutory
language is given its common, ordinary, and accepted meaning, except that
technical or specially-defined words or phrases are given their technical or special
definitional meaning.” Id. “Statutory interpretation presents a question of law
that we review de novo.” State v. Stewart, 2018 WI App 41, ¶18, 383 Wis. 2d
546, 916 N.W.2d 188.

¶11 WISCONSIN STAT. § 941.29(4m)(a) states that “[i]f a person commits
a violation of [the felon in possession statute], the court shall impose a bifurcated

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sentence … and the confinement portion of the bifurcated sentence imposed on the
person shall be not less than [three] years[.]” (Emphasis added).

¶12 The plain language of WIS. STAT. § 941.29(4m)(a) expressly states
that a sentencing court “shall impose a bifurcated sentence” and the confinement
portion “shall be not less than [three] years[.]” “The general rule is that the word
‘shall’ is presumed mandatory when it appears in a statute.” Rotfeld v. DNR, 147
Wis. 2d 720, 726, 434 N.W.2d 617 (Ct. App. 1988) (citation omitted). Thus,
contrary to Brehm’s argument, imposing a bifurcated sentence with a three-year
period of initial confinement was mandatory, not optional.

¶13 Moreover, our supreme court has rejected a similar argument in
State v. Williams, 2014 WI 64, 355 Wis. 2d 581, 852 N.W.2d 467. In Williams,
the court examined whether the language of an operating while intoxicated penalty
statute, WIS. STAT. § 346.65(2)(am)6. (2009-10), required a sentencing court to
impose a bifurcated sentence with three years of initial confinement. Id., ¶6. The
defendant suggested that because the statute did “not explicitly prohibit probation,
the sentencing court retains the option to order it.” Id., ¶34. The court rejected the
defendant’s argument holding that “[i]f the statute imposes a mandatory minimum
in prison, there would be no reason to prohibit probation. The fact that other
unrelated statutes do explicitly prohibit probation in an abundance of caution is
irrelevant.” Id. (footnote omitted). Likewise, here, the absence of language in

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WIS. STAT. § 941.29(4m)(a) specifically prohibiting a court from staying the
sentence and ordering probation is irrelevant.4

¶14 Brehm argues that we should apply the rule of lenity when
construing WIS. STAT. § 941.29. The rule of lenity provides generally that “when
doubt exists as to the meaning of a criminal statute, ‘a court should … interpret the
statute in favor of the accused.’” State v. Guarnero, 2015 WI 72, ¶26, 363
Wis. 2d 857, 867 N.W.2d 400 (citation omitted). However, this rule only applies
if a “grievous ambiguity” or uncertainty exists that “would cause a court to
‘simply guess’ as to the meaning of the statute.” Id., ¶27 (citation omitted). As
discussed above, we do not find that § 941.29(4m)(a) is ambiguous, thus, the rule
of lenity does not apply. See State v. Luedtke, 2015 WI 42, ¶73, 362 Wis. 2d 1,
863 N.W.2d 592.

B. Constitutionality of WIS. STAT. § 941.29(4m)(a)

¶15 Brehm argues that WIS. STAT. § 941.29(4m)(a) is unconstitutionally
overbroad. “A statute is overbroad when its language, given its normal meaning,
is so sweeping that its sanctions may be applied to constitutionally protected
conduct which the state is not permitted to regulate.” See State ex rel. Two
Unnamed Petitioners v. Peterson, 2015 WI 85, ¶52, 363 Wis. 2d 1, 866 N.W.2d
165 (citation omitted). Statutes are presumed constitutional, and a challenger must
show unconstitutionality beyond a reasonable doubt. Winnebago Cnty. v. C.S.,

4
Brehm points to State v. Strohbeen, 147 Wis. 2d 566, 433 N.W.2d 288 (Ct. App.
1988), to support his argument that the circuit court had the authority to stay his sentence.
Strohbeen, however, is factually distinctive. Strohbeen did not involve a mandatory minimum
penalty statute, but rather whether a court had the authority to impose a sentence consecutive to a
forfeiture commitment. Id. at 568-69.

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No. 2020AP266-CR

2020 WI 33, ¶14, 391 Wis. 2d 35, 940 N.W.2d 875. The constitutionality of a
statute is reviewed de novo. Id., ¶13.

¶16 We conclude that Brehm has failed to meet his burden to show that
WIS. STAT. § 941.29(4m)(a) is overbroad. Brehm does not explain why the
language in the statute is so sweeping that it applies to constitutionally protected
conduct which the State is not permitted to regulate. We will not develop
arguments for parties. See Industrial Risk Insurers v. American Eng’g Testing,
Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82.

¶17 Further, we are not persuaded under the particular facts of this case
that the statute is unconstitutional. The complaint, which the defense stipulated to
at the plea hearing, alleged that neighbors saw Brehm holding a firearm out of an
upstairs window and discharging the firearm into the air. Such conduct clearly
poses public safety concerns. See State v. Roundtree, 2021 WI 1, ¶53, 395
Wis. 2d 94, 952 N.W.2d 765 (rejecting an argument that the felon in possession
statute was unconstitutional as applied because the statute was substantially related
to an important government objective of public safety and the prevention of gun
violence). Thus, Brehm has not established that WIS. STAT. § 941.29(4m)(a) is
overbroad. See C.S., 391 Wis. 2d 35, ¶14.

C. Improper or Inaccurate Information

¶18 Brehm argues that he was sentenced based on improper or inaccurate
information because the circuit court erroneously believed it did not have the
authority to impose and stay his sentence.

¶19 In order to succeed on this challenge, Brehm must establish that
there was in fact an improper or inaccurate factor. See State v. Alexander, 2015

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No. 2020AP266-CR

WI 6, ¶¶17-18, 360 Wis. 2d 292, 858 N.W.2d 662. As discussed above, we reject
Brehm’s argument that the circuit court had the authority to impose and stay the
mandatory minimum. Therefore, we do not find that Brehm was sentenced based
on improper or inaccurate information.

II. Ineffective Assistance of Counsel

¶20 Brehm argues that “trial counsel was ineffective, entitling [him] to
an evidentiary hearing to withdraw his plea.” We disagree.

¶21 A defendant seeking to withdraw his plea after sentencing must
prove by clear and convincing evidence that plea withdrawal is necessary to
correct a manifest injustice. State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d
50 (1996). One way to establish a manifest injustice is ineffective assistance of
counsel. Id.

¶22 To prevail on a claim of ineffective assistance of counsel, the
defendant must prove both that counsel’s performance was deficient and that the
defendant was prejudiced by the deficient performance. Strickland v.
Washington, 466 U.S. 668, 687 (1984). A reviewing court may dispose of a claim
of ineffective assistance of counsel on either ground. Id. at 697.

¶23 To prove deficiency, a defendant must demonstrate that counsel’s
conduct falls below an objective standard of reasonableness. Id. at 687-88. In the
plea withdrawal context, to establish prejudice, a defendant must show that “there
is a reasonable probability that, but for counsel’s errors, [the defendant] would not
have pleaded guilty and would have insisted on going to trial.” See Hill v.
Lockhart, 474 U.S. 52, 59 (1985).

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No. 2020AP266-CR

¶24 A defendant is not automatically entitled to an evidentiary hearing.
Bentley, 201 Wis. 2d at 310-11. A circuit court is required to hold an evidentiary
hearing only if the defendant has alleged “sufficient material facts that, if true,
would entitle the defendant to relief.” State v. Allen, 2004 WI 106, ¶14, 274
Wis. 2d 568, 682 N.W.2d 433. Whether a defendant’s motion has alleged
sufficient material facts entitling the defendant to relief is a question of law that
we review de novo. Id., ¶9.

¶25 If the postconviction motion “does not raise facts sufficient to entitle
the movant to relief, or presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to relief, the circuit
court has the discretion to grant or deny a hearing.” Id. We review this decision
under the deferential exercise of discretion standard. Id.

¶26 Here, Brehm did not adequately allege that he was prejudiced by
trial counsel’s actions. As the circuit court observed, Brehm’s postconviction
motion “did not even offer a bare-bones allegation about why he would not have
pled guilty but for counsel’s purported errors—he offered no allegation at all.”
See Lockhart, 474 U.S. at 59. Moreover, as discussed below, each of Brehm’s
arguments are conclusory and devoid of factual support. See Bentley, 201 Wis. 2d
at 314 (“[A] defendant should provide facts that allow the reviewing court to
meaningfully assess his or her claim.”).

¶27 Brehm first contends that trial counsel was ineffective for failing to
request a PSI “in a felony case where substantial prison time is involved.” Brehm
asserts that a PSI would have provided information about his “mental health,
physical health, and type of man [he] is.” Brehm, however, does not specify what

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No. 2020AP266-CR

a PSI would have stated about these general topics, or more significantly, explain
why the absence of a PSI would provide a basis for him to withdraw his plea.5

¶28 Next, Brehm argues that trial counsel should have offered evidence
of Brehm’s alleged “non-possession” of the firearm. Brehm asserts that he “is not
the owner of the gun that fired,” at the time he admitted to the police that he shot
the gun he had “a dangerously high intoxication level of .71 on a Breathanalyzer
test,”6 and “he did not fully remember everything that happened[.]” As the circuit
court stated, “none of this information matters” because Brehm entered a plea to
felon in possession of a firearm and does not allege or develop any argument that
his plea was not knowing, voluntary, or intelligent.

¶29 Moreover, Brehm does not explain why his lack of ownership is
relevant to whether he possessed a firearm in violation of WIS. STAT. § 941.29.
See WIS JI—CRIMINAL 1343 (2019) (stating that “[i]t is not required that a person
own an item in order to possess it”). Similarly, Brehm does not explain, or cite

5
Brehm alleges that he “could have received a more favorable sentence.” The State
construes this as a request for a new sentencing hearing. To the extent that Brehm is also seeking
a new sentencing hearing, we reject his request. As stated above, Brehm does not specify what a
PSI would have stated. Nor does Brehm explain how the information in a PSI would have been
different from that presented at sentencing. Prior to sentencing, trial counsel submitted six letters
on Brehm’s behalf. Those letters provided information about Brehm’s character and background,
including his relationship with his children. In addition, during sentencing, trial counsel
specifically discussed Brehm’s mental health and his physical health issues. Thus, Brehm has
failed to allege sufficient facts to show that there “is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” See
Strickland v. Washington, 466 U.S. 668, 694 (1984).
6
The complaint states that “[a] preliminary breath test of [Brehm] yielded a result of
0.71.” At sentencing, the State noted that there was “a typo” in the complaint and Brehm’s blood
alcohol content was actually “0.071,” not “0.71.”

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any legal authority, as to why his intoxication or lack of memory rendered his
statements unreliable.

¶30 Finally, Brehm states that trial counsel should have advised him “not
to make statements to his detriment” at sentencing. Once again, Brehm’s
argument is conclusory and undeveloped. Brehm does not indicate what specific
statements he is referring to or provide any explanation or argument as to why this
entitles him to plea withdrawal.

¶31 For the reasons stated above, we conclude that Brehm did not allege
sufficient material facts, that if true, would have entitled him to withdraw his
guilty plea due to ineffective assistance of counsel. Therefore, the circuit court
acted properly when it denied Brehm’s postconviction motion without a hearing.

CONCLUSION

¶32 In sum, we reject Brehm’s argument that the circuit court
erroneously applied the mandatory minimum and that WIS. STAT. § 941.29(4m) is
unconstitutionally overbroad. We also reject Brehm’s argument that he is entitled
to an evidentiary hearing to withdraw his plea. Thus, we affirm.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

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