State v. Jeramy Gene Brown

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.
October 18, 2022
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. 2021AP878-CR Cir. Ct. No. 2018CF486

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JERAMY GENE BROWN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Douglas County: KELLY J. THIMM, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Jeramy Gene Brown appeals from a judgment,
entered upon his no-contest pleas, convicting him of one count of operating a
No. 2021AP878-CR

motor vehicle while intoxicated (OWI), causing injury, as a third offense, and one
count of injury by intoxicated use of a motor vehicle. Brown also appeals from an
order denying his motion for postconviction relief seeking to withdraw his pleas.
Brown argues that his trial counsel provided him with constitutionally ineffective
assistance based on his plea to a WIS. STAT. ch. 940 (2019-20)1 offense, which
rendered him ineligible for earned release through the Wisconsin Substance Abuse
Program (SAP). For the reasons that follow, we conclude that Brown has not met
his burden to prove that his trial counsel was constitutionally ineffective, and,
accordingly, he is not entitled to plea withdrawal on that basis.

BACKGROUND

¶2 Brown was charged in a six-count2 Information after a vehicle
collision resulting in serious injuries. The criminal complaint alleged that Brown
ingested alcohol and then drove to a local restaurant “to pick up pizza.” While
en route to the restaurant, Brown ran a stop sign and crashed into another vehicle
carrying a family of four, causing the family’s car to flip and “land[] upside down
in the ditch.” All four family members sustained injuries, including seatbelt
lacerations, broken bones, brain bleeds, and a collapsed lung.

¶3 While investigating the crash, officers gathered information leading
them to believe that alcohol was likely a factor in the accident. One of the first
responders providing medical assistance to Brown “asked Brown if he ‘had any

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
Brown was charged with one count of OWI, causing injury, as a third offense; one
count of operating with a prohibited alcohol concentration, causing injury, as a third offense; and
four counts of injury by intoxicated use of a vehicle.

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booze on board,’” and Brown responded, “Yea.” When asked how much he had
to drink, Brown’s response was “73 beers.” He denied using drugs. Officers also
observed an unopened beer can near the vehicle, which first responders stated had
been in the vehicle, and “a glass cup with a beer brand label on it in the center
console area” that “had a yellow liquid in it which smelled like orange juice.”

¶4 Brown was subsequently transported to the hospital for treatment of
his injuries. While at the hospital, an officer provided Brown with Miranda3
warnings and read Brown the Informing the Accused Form. The officer again
asked Brown about his alcohol consumption. Brown stated that he had “‘[a] few
screwdrivers’ (vodka & orange juice).” When the officer asked Brown how much
he had to drink, he responded, “Probably too much.” Brown consented to a blood
draw, which revealed a blood alcohol concentration (BAC) of .210.

¶5 Brown pled no contest to two of the six counts charged in the
Information: OWI, causing injury, as a third offense, in violation of WIS. STAT.
§ 346.63(2)(a)1. (Count 1); and injury by intoxicated use of a vehicle in violation
of WIS. STAT. § 940.25(1) (Count 3). The remaining four counts were dismissed
outright. The circuit court ordered a presentence investigation report (PSI), which
was filed with the court prior to sentencing.

¶6 At sentencing, Brown’s struggles with alcohol abuse were
highlighted by both the State and his trial counsel. The State explained that
“alcohol has been a factor” throughout Brown’s criminal history. Despite this
history, Brown “made no efforts to receive treatment [for substance abuse] in the

3
Miranda v. Arizona, 384 U.S. 436 (1966).

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community since the offense”; thus, the State argued that “it is absolutely
imperative that a confinement setting is necessary” for Brown to receive treatment.
The State recommended a prison sentence in conjunction with a significant period
of extended supervision. Brown’s trial counsel acknowledged that Brown has “an
alcohol problem,” but counsel highlighted the mitigating factors in Brown’s favor
and argued that probation was appropriate under the circumstances.

¶7 After reviewing the appropriate factors under State v. Gallion, 2004
WI 42, ¶¶39-44, 270 Wis. 2d 535, 678 N.W.2d 197, the circuit court determined
that a prison sentence was necessary. The court explained that Brown had not
“learn[ed] from his mistakes,” and “confinement is necessary” so Brown can
receive the treatment he needs. On Count 1, the court sentenced Brown to five
years, comprised of two years’ initial confinement followed by three years’
extended supervision. On Count 3, the court imposed a consecutive nine-year
sentence, consisting of four years’ initial confinement followed by five years’
extended supervision.

¶8 The circuit court then inquired about Brown’s eligibility for SAP.4
The State noted that Brown was eligible on Count 1 but not on Count 3 because
that conviction “is a [WIS. STAT. ch.] 940 offense.” Brown’s trial counsel agreed
but with qualifications, stating, “I’d have to check the statute again. That sounds
right, but I would hesitate to say yes, because I haven’t looked at it in a while.”

4
SAP, formerly the Earned Release Program, see 2011 Wis. Act 38, §19, allows an
eligible inmate the opportunity to obtain early release from the initial confinement portion of his
or her sentences if the inmate completes the program to the Department of Corrections’ (DOC)
satisfaction. WIS. STAT. § 302.05(3). After completing the program, the defendant’s remaining
period of initial confinement is converted to extended supervision. Sec. 302.05(3)(c)2.; State v.
Owens, 2006 WI App 75, ¶5, 291 Wis. 2d 229, 713 N.W.2d 187.

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No. 2021AP878-CR

After consulting the statute, counsel agreed that Brown was not eligible for SAP
on Count 3. The court also questioned the PSI author, who concurred.5 The PSI
author did, however, inform the court that because the sentences are to run
consecutively, “if [Brown] were to serve [Count 3] first and then serve Count 1
second, he would be eligible [for SAP] on [Count 1].” In response, the court
ordered that Brown serve Count 3 before serving Count 1 to have the “potential
opportunity to get” SAP while serving the Count 1 sentence.

¶9 Brown filed a postconviction motion seeking plea withdrawal based
on ineffective assistance of counsel. Brown argued that his trial counsel
“misinformed” him that he was eligible for SAP on Count 3 or, in the alternative,
that counsel was ineffective by failing to advise him that he was ineligible for SAP
on that count. Brown alleged that had he been advised “that his pleas would
render him ineligible for earned release via the SAP, he would not have entered
his pleas.”

¶10 The circuit court held a Machner6 hearing on the motion. Brown’s
trial counsel testified that he could not recall whether he discussed SAP with
Brown, and there were no notes in the file regarding SAP discussions. According
to counsel, it was his practice to discuss SAP with defendants if “prison was a
certainty.” Counsel testified, however, that he did not believe that prison was a
certainty in this case:

[I]f I recall correctly, this was not a case that I anticipated
or at least would have advised him like, yes, absolutely,

5
The PSI itself has a section entitled, “Statutorily Eligible for Substance Abuse
Program,” with the “No” box checked.
6
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2021AP878-CR

you are going to receive prison in this case. This struck me
more as a case that at least there was a very strong
probability that he would not be receiving prison.

¶11 Brown also testified at the Machner hearing. According to Brown,
he was aware of SAP prior to entering his pleas based on discussions with a friend,
who told him, “Make sure you get [SAP].” Brown explained that he “had no idea
what that was at the time,” but he testified that he did not ask his trial counsel
about “programming” until after he entered his pleas. Brown stated that his
counsel’s response on “programming” was “vague,” noting that he “should be
eligible” “if [he] actually would go to prison” but it was “[u]p to the Judge.”
Brown testified that he did not know Count 3 was ineligible for SAP and that if he
had known that he was ineligible prior to entering his pleas, he “wouldn’t have
pled” to that count.

¶12 The circuit court concluded the hearing and allowed the parties to
file post-hearing briefs. In Brown’s brief, he raised, for the first time, a third
ineffective assistance of counsel claim: that once it became clear prior to
sentencing that Brown was not eligible for SAP on Count 3, trial counsel had a
duty to inform Brown that he could withdraw his pleas under the less exacting
“fair and just reason” standard for plea withdrawal.7

7
Prior to sentencing, a defendant may “freely” withdraw his or her plea for any “fair and
just reason,” unless the prosecution would be substantially prejudiced. State v. Lopez, 2014 WI
11, ¶61, 353 Wis. 2d 1, 843 N.W.2d 390 (citation omitted). In contrast, when a motion for plea
withdrawal is brought after sentencing, the defendant carries the heavy burden of establishing, by
clear and convincing evidence, that plea withdrawal is necessary to correct a manifest injustice.
State v. Daley, 2006 WI App 81, ¶14, 292 Wis. 2d 517, 716 N.W.2d 146. Brown’s
postconviction counsel acknowledged in a letter to the circuit court that this was “an additional
argument” that was not previously raised in his postconviction motion.

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No. 2021AP878-CR

¶13 The circuit court subsequently issued its oral decision denying
Brown’s motion on all three ineffective assistance of counsel claims. First, the
court stated that it found Brown’s trial counsel’s testimony credible and that it
found Brown’s testimony incredible. While the court acknowledged that trial
counsel could not remember whether he discussed SAP with Brown, it stated that
counsel “knows what the standard is” for SAP eligibility; therefore, the court
found that counsel gave Brown “no information” on SAP rather than “wrong
information,” as Brown alleged. Second, the court concluded that SAP is “clearly
a collateral consequence”8 of a plea, as even where a statute does not preclude
eligibility, courts and the DOC exercise discretion over eligibility for and
administration of SAP. See WIS. STAT. §§ 302.05(3)(a), 973.01(3g). Accordingly,
trial counsel was not ineffective because he was not required to inform Brown as
to his program eligibility.

¶14 Finally, the circuit court concluded that Brown’s trial counsel was
not ineffective by failing to inform Brown that he could have withdrawn his pleas
prior to his sentences being imposed. According to the court, Brown “didn’t

8
Our supreme court previously addressed the difference between direct and collateral
consequences of a plea:

Direct consequences are those that have a “definite, immediate,
and largely automatic effect on the range of a defendant’s
punishment.” Collateral consequences, on the other hand, “are
indirect and do not flow from the conviction”; rather, they “may
be contingent on a future proceeding in which a defendant’s
subsequent behavior affects the determination” or may “rest[]
not with the sentencing court, but instead with a different
tribunal or government agency.”

State v. LeMere, 2016 WI 41, ¶31, 368 Wis. 2d 624, 879 N.W.2d 580 (alteration in original;
citations omitted).

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No. 2021AP878-CR

know, at that point, whether [the court] was going to sentence him to prison or
probation.” Accordingly, the court was not “satisfied that that was an issue that
would have allowed him to withdraw his plea under the fair and just standard.”
The court did not address prejudice, concluding instead that Brown’s trial counsel
did not perform deficiently. Brown appeals.

DISCUSSION

¶15 After sentencing, “a plea will not be disturbed unless the defendant
establishes by clear and convincing evidence that failure to withdraw the guilty or
no contest plea will result in a manifest injustice.” State v. Taylor, 2013 WI 34,
¶48, 347 Wis. 2d 30, 829 N.W.2d 482. “One way to demonstrate manifest
injustice is to establish that the defendant received ineffective assistance of
counsel.” State v. Dillard, 2014 WI 123, ¶84, 358 Wis. 2d 543, 859 N.W.2d 44.

¶16 To prove ineffective assistance of counsel, the defendant bears the
burden to establish: (1) that counsel’s performance was deficient; and (2) that the
deficient performance prejudiced the defense. State v. Sholar, 2018 WI 53, ¶32,
381 Wis. 2d 560, 912 N.W.2d 89. “A court need not address both components of
this inquiry if the defendant does not make a sufficient showing on one.” State v.
Smith, 2003 WI App 234, ¶15, 268 Wis. 2d 138, 671 N.W.2d 854.

¶17 “To demonstrate deficient performance, the defendant must show
that his [or her] counsel’s representation ‘fell below an objective standard of
reasonableness’ considering all the circumstances.” State v. Shata, 2015 WI 74,
¶56, 364 Wis. 2d 63, 868 N.W.2d 93 (citations omitted). When courts consider
ineffective assistance claims, “[j]udicial scrutiny of counsel’s performance must
be highly deferential” and “counsel is strongly presumed to have rendered
adequate assistance.” Strickland v. Washington, 466 U.S. 668, 689-90 (1984).

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No. 2021AP878-CR

¶18 To establish prejudice, “a defendant must show that there is a
reasonable probability that, but for counsel’s professional errors, the result of the
proceeding would have been different.” State v. Savage, 2020 WI 93, ¶32, 395
Wis. 2d 1, 951 N.W.2d 838 (citation omitted). “To establish prejudice in the
context of a postconviction motion to withdraw a guilty plea based upon
ineffective assistance of counsel, the defendant must allege that ‘but for the
counsel’s errors, he [or she] would not have pleaded guilty and would have
insisted on going to trial.” State v. Burton, 2013 WI 61, ¶50, 349 Wis. 2d 1, 832
N.W.2d 611 (citation omitted); see also Hill v. Lockhart, 474 U.S. 52, 59 (1985).
However, “a defendant must do more than merely allege that he [or she] would
have pleaded differently but for the alleged deficient performance. He [or she]
must support that allegation with ‘objective factual assertions.’” State v.
Hampton, 2004 WI 107, ¶60, 274 Wis. 2d 379, 683 N.W.2d 14 (citation omitted).

¶19 Whether a defendant has been denied constitutionally effective
assistance of counsel is a mixed question of law and fact. Savage, 395 Wis. 2d 1,
¶25. We will not overturn a circuit court’s findings of fact unless those findings
are clearly erroneous. Id. We review de novo whether counsel performed
deficiently and, if so, whether counsel’s deficient performance was prejudicial to
the defense. Id.

¶20 On appeal, Brown raises the same three ineffective assistance of
counsel claims that he raised before the circuit court: (1) Brown’s trial counsel
misinformed Brown regarding his SAP eligibility; (2) counsel failed to advise
Brown that Count 3 was ineligible for SAP; and (3) counsel failed to inform

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No. 2021AP878-CR

Brown that he could have withdrawn his pleas prior to being sentenced.9 For the
reasons that follow, we affirm the court’s conclusion that Brown’s trial counsel
was not constitutionally ineffective.

¶21 Brown first alleges that he was “affirmatively misled when trial
counsel told him after the pleas were entered, but before sentencing, that … he
would … be eligible for SAP [on Count 3].” While we are somewhat confused by
Brown’s claim that his counsel’s misinformation provided after he entered his plea
can serve as a basis to withdraw his plea, we conclude, based on the record before
us, that Brown has failed to establish that his trial counsel performed deficiently.
Brown argues that the circuit court’s finding that no discussion regarding SAP
took place between Brown and his trial counsel is clearly erroneous as it is
“unsupported by facts in the record.” We disagree.

¶22 According to Brown, his trial counsel testified that he did not “have
any memory of any discussions with [Brown] about [SAP] after the plea and prior
to the sentencing” but that “it’s possible it was discussed.” Further, Brown claims
that the court “fails to explain why Brown’s testimony that such a conversation
occurred was not credible, especially when trial counsel concedes it may be true.”

¶23 Contrary to Brown’s claim, the circuit court did discuss its reasons
for finding Brown not credible, explaining that it had “a little bit of concern about”

9
The State argues on appeal that we are unable to review Brown’s argument that his
counsel was ineffective for failing to inform Brown that he could withdraw his pleas prior to
entering his sentences, as Brown did not raise this issue in his postconviction motion. In the
interests of efficient judicial administration, we choose to address the issue, however, as it was
raised in postconviction briefing, the State had the opportunity to respond to Brown’s argument at
that time, and the circuit court addressed the issue in its decision on Brown’s postconviction
motion.

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No. 2021AP878-CR

Brown as it is “clear” based on “the file in its entirety, letters and things being sent
to [the court]” that he “is grasping at straws to be released now that he’s
incarcerated and in prison.” The court went on to note that Brown is “kind of
desperate looking—trying to change or have his testimony a certain way in order
to meet the ends that he’s seeking. So … I don’t find him credible on a number of
things.”

¶24 We also conclude that the circuit court’s finding that Brown was not
misinformed as to his SAP eligibility is supported by the record. The court
acknowledged that Brown’s trial counsel could not recall whether he had
discussed SAP with Brown; however, the court found that counsel “knows what
the standard is” for SAP eligibility. This finding is supported by counsel’s
testimony—which the court explicitly found “credible”—that he was an
experienced criminal attorney, he had “run into this issue … several years” earlier
and had “researched [SAP] before,” and he “kn[ew] that a [WIS. STAT. ch.] 940
offense disqualifies somebody for the [SAP].”

¶25 Given the circuit court’s finding that counsel knew the SAP
eligibility standard, it reasonably concluded that Brown’s trial counsel would not
have provided Brown with “wrong information”; therefore, the court reasoned that
“at best, [its] finding of fact is [that counsel] gave no information” about SAP
eligibility. This finding is also supported by counsel’s testimony. According to
trial counsel, SAP was not something he “necessarily … would always discuss
[with a defendant] prior to sentencing or prior to a plea” where prison was not a
“certainty.” Counsel specifically stated that he believed that “there was a very
strong probability that [Brown] would not be receiving prison,” so “it’s possible
[they] wouldn’t have necessarily discussed” SAP eligibility and there were no
notes in Brown’s file indicating that they did.

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No. 2021AP878-CR

¶26 In summary, regardless of whether Brown’s SAP eligibility was or
was not discussed prior to sentencing, Brown has failed to meet his burden to
prove that his trial counsel misinformed him. In other words, under no
circumstances does the credible evidence presented to the circuit court
demonstrate that Brown was misinformed by his trial counsel as to his eligibility
for SAP. The court found Brown’s self-serving testimony incredible, and his trial
counsel’s inability to recall a discussion on the topic does not somehow bolster
Brown’s testimony or render it credible. Whether or not SAP was in fact
discussed, the court’s finding that Brown’s trial counsel did not provide incorrect
information regarding Brown’s eligibility is not clearly erroneous, and,
accordingly, counsel did not perform deficiently.

¶27 On the second and third issues—trial counsel’s alleged failure both
to advise Brown that he was ineligible for SAP on Count 3 and to inform Brown
that he could have withdrawn his pleas prior to being sentenced—we conclude that
Brown’s ineffective assistance claims fail because he has not established that he
was prejudiced by his trial counsel’s allegedly deficient performance. See
Vanstone v. Town of Delafield, 191 Wis. 2d 586, 595, 530 N.W.2d 16 (Ct. App.
1995) (we may affirm on different grounds than those relied on by the circuit
court). As the State asserts, “Regardless of how Brown attempts to characterize
his argument, he is seeking to withdraw his pleas based on ineffective assistance
of counsel through a postconviction motion.” Meaning, as noted above, that
Brown must show that he “would have insisted on going to trial,” see Burton, 349
Wis. 2d 1, ¶50, with support from “objective factual assertions,” see Hampton,
274 Wis. 2d 379, ¶60 (citation omitted).

¶28 Brown has failed to sufficiently plead or establish that he was
prejudiced by his trial counsel’s allegedly deficient performance. In his

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No. 2021AP878-CR

postconviction motion, Brown claims that his “[t]rial counsel’s representations
were prejudicial” and that “[h]ad Brown known he was not eligible for earned
release via the SAP, he would not have entered his pleas.” On appeal, Brown
claims he was “prejudiced because he did not have an opportunity to withdraw his
pleas under the ‘fair and just’ standard and now seeks an opportunity to do so” and
because “[c]ounsel’s misadvice … effectively deprived Brown of his right to
decide whether to go to trial or plead with full knowledge of the stakes involved.”

¶29 What Brown entirely fails to argue is that he would not have pled no
contest to Counts 1 and 3 and would have instead insisted on going to trial on all
the charges against him. Any claim to the contrary is belied by Brown’s express
statement that he is not “asking that his pleas be withdrawn.” Instead, he explains,
“the proper remedy is to restore the case to a post-plea, pre-sentencing posture, so
Brown can bring a pre-sentence motion for plea withdraw” under the “fair and just
reason” standard. Thus, Brown is clearly not arguing that he would have gone to
trial. As the State argues, “Brown is merely hopeful that he can secure a better
plea deal.”

¶30 Brown has also failed to provide objective factual assertions or
allege special circumstances in support of any claim that he would have gone to
trial but for his trial counsel’s deficient performance. See Hampton, 274 Wis. 2d
379, ¶60; Hill, 474 U.S. at 60. Brown suggests that SAP eligibility was an
important consideration in his decision to enter his pleas. During his testimony,
however, he admitted that he did not even ask his trial counsel about SAP until
after the plea hearing, despite testifying that he was aware of SAP prior to that
time based on conversations with a friend. Further, as noted above, the PSI
expressly stated that Brown was not eligible for SAP, but Brown did not express
any concerns about his ineligibility after he reviewed the PSI with his trial counsel

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No. 2021AP878-CR

prior to sentencing. Brown also failed to raise any concerns at his sentencing
hearing when the parties were discussing SAP eligibility and reordering his
sentences for that purpose.

¶31 Finally, the circumstances of this case do not support a conclusion
that Brown would likely have insisted on going to trial but for trial counsel’s
alleged errors. Brown was charged with a total of six crimes (four of which were
statutorily precluded from SAP), and he pled to only two. Additionally, the
evidence against Brown was strong—a .210 BAC and Brown’s own admissions,
for example—and involved significant injuries to a family of four, including
children. Thus, the factual circumstances do not support a conclusion that Brown
would likely have insisted on going to trial. As such, Brown cannot show that he
was prejudiced by his trial counsel’s allegedly deficient performance, and Brown
has not established that he is entitled to withdraw his pleas based on a manifest
injustice.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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