State v. William Francis Kuehn

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.
July 28, 2020
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. 2018AP2355-CR Cir. Ct. No. 2014CF5317

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

WILLIAM FRANCIS KUEHN,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Milwaukee County: ELLEN R. BROSTROM and JEFFREY A. WAGNER,
Judges. Affirmed.

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

¶1 FITZPATRICK, J. After guilty pleas, William Kuehn was
convicted in the Milwaukee County Circuit Court of five counts of possession of
No. 2018AP2355-CR

child pornography pursuant to WIS. STAT. § 948.12(1m) (2013-14).1 Ten counts
of possession of child pornography were dismissed by the State and read in at the
time of Kuehn’s sentencing. The trial court sentenced Kuehn to five consecutive
terms of imprisonment.2 In addition, pursuant to WIS. STAT. § 973.042(2), the trial
court imposed a $500 child pornography surcharge against Kuehn for each of the
images which formed the bases for the five counts of which he was convicted and
for each of the images which formed the bases for the ten counts which were
dismissed and read in at sentencing. The trial court also barred Kuehn, during the
term of his extended supervision, from having any contact with his girlfriend.

¶2 In postconviction motions,3 Kuehn argued that: (1) he should be
allowed to withdraw his guilty pleas because his trial counsel was constitutionally
ineffective; (2) the trial court erred in imposing the child pornography surcharge
for each of the ten images which formed the bases for the read-in counts; and
(3) the trial court impermissibly infringed on Kuehn’s constitutional right to
freedom of association by barring contact with Kuehn’s girlfriend during his term
of extended supervision. The postconviction court denied each of Kuehn’s
motions. Kuehn appeals and we affirm.

BACKGROUND

¶3 The following material facts are not disputed.

1
All references to the Wisconsin Statutes are to the 2013-14 version unless otherwise
noted.
2
Judge Ellen R. Brostrom accepted Kuehn’s guilty pleas and pronounced sentence. We
will refer to Judge Brostrom as the “trial court.”

Judge Jeffrey A. Wagner decided Kuehn’s postconviction motions. We will refer to
3

Judge Wagner as the “postconviction court.”

2
No. 2018AP2355-CR

¶4 Kuehn was charged, pursuant to WIS. STAT. § 948.12(1m), with
fifteen counts of possession of child pornography. The criminal complaint alleged
that images which showed children engaged in sexual activity were located on a
cell phone owned by Kuehn. After pretrial proceedings, Kuehn pleaded guilty to
five counts of possession of child pornography, and the State dismissed and read
in to the record the ten remaining counts of possession of child pornography.4

¶5 At a later sentencing hearing after the preparation of a Presentence
Investigation Report, the trial court sentenced Kuehn to four years of initial
confinement and four years of extended supervision on each count, consecutive to
each other, for a total of twenty years of initial confinement and twenty years of
extended supervision. The trial court also determined that each of the fifteen
images which formed the bases for the five counts to which Kuehn pleaded guilty,
and the ten read-in counts, were “associated with the crime.” Based on that
determination, and pursuant to WIS. STAT. § 973.042(2), the trial court imposed a
$500 child pornography surcharge for each image, totaling $7500.5 Further, the

4
At the plea hearing, Kuehn told the trial court the following, among other things:

THE COURT: Your addendum says that you read the
Criminal Complaint and Counsel read it to you. Is that correct?

THE DEFENDANT: Yes.

….

THE COURT: And are you pleading guilty to these five
counts because you are in fact guilty of all five of them?

THE DEFENDANT: Yes.
5
WISCONSIN STAT. § 973.042(2) states:

If a court imposes a sentence or places a person on
probation for a crime under [WIS. STAT. §§] 948.05 or 948.12
and the person was at least 18 years of age when the crime was
(continued)

3
No. 2018AP2355-CR

trial court ordered Kuehn to comply with conditions of extended supervision,
including “that [Kuehn] have no contact with [J.S.].”6

¶6 Before the postconviction court, Kuehn filed three motions relevant
to this appeal. First, Kuehn sought to withdraw his guilty pleas on ineffective
assistance of counsel grounds, alleging that his trial counsel was ineffective for not
pursuing a third-party perpetrator defense so as to argue at trial that a person other
than Kuehn committed the crimes for which Kuehn was convicted. The
postconviction court held a Machner7 hearing. At that hearing, Kuehn testified
that, if his trial counsel had pursued a third-party perpetrator defense, he would not
have pled guilty to the five counts of possession of child pornography. Rather,
Kuehn testified that he would have gone to trial on all fifteen counts. Kuehn’s
trial counsel also testified at that hearing. The postconviction court rejected
Kuehn’s argument and concluded that trial counsel was not ineffective for failing
to pursue the third-party perpetrator defense.

¶7 Second, Kuehn requested that the judgment of conviction be
amended because the images upon which the ten read-in offenses were based were
not “associated with the crime” as that phrase is used in WIS. STAT. § 973.042(2)
and, as a result, the trial court should not have imposed a child pornography

committed, the court shall impose a child pornography surcharge
of $500 for each image or each copy of an image associated with
the crime. The court shall determine the number of images or
copies of images associated with the crime by a preponderance
of the evidence and without a jury.
6
In briefing in this court, J.S. is referred to by Kuehn as his “girlfriend.” J.S. is the
mother of three children, one of which is Kuehn’s son. In briefing in this court, the parties refer
to J.S. by initials, and we do the same.
7
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

4
No. 2018AP2355-CR

surcharge for those ten images. Again, the postconviction court rejected Kuehn’s
argument and denied the motion.

¶8 Third, Kuehn requested that the postconviction court remove the
condition of extended supervision which forbids Kuehn from having contact with
J.S. during his term of extended supervision. Kuehn asserted that this condition
impermissibly infringes on his constitutional right to freedom of association. The
postconviction court denied the motion, concluding that this condition of extended
supervision was necessary for the rehabilitation of Kuehn and, as such, does not
violate Kuehn’s constitutional right.

¶9 Kuehn appeals. We will mention other material facts in the
following discussion.

DISCUSSION

¶10 We first discuss Kuehn’s request for plea withdrawal based on
purported ineffective assistance of his trial counsel. We then discuss the
imposition of the child pornography surcharge for the images on which the ten
read-in offenses were based. Finally, we consider whether the condition of
extended supervision which bars Kuehn from contacting J.S. impermissibly
infringes on Kuehn’s constitutional right to freedom of association.

I. Ineffective Assistance of Counsel.

¶11 Kuehn alleges that, in spite of his guilty pleas, he did not commit the
five counts of possession of child pornography for which he was convicted.

5
No. 2018AP2355-CR

Kuehn now claims that an acquaintance of his, W.S., committed these crimes.8
Kuehn further contends that, if not for his trial counsel’s failure to prepare a third-
party perpetrator defense implicating W.S., he would not have pled guilty to the
five counts of possession of child pornography. Rather, Kuehn alleges that he
would have gone to trial on all fifteen counts of possession of child pornography.
For these reasons, Kuehn argues that we should allow him to withdraw his guilty
pleas.

¶12 We begin by discussing the standards governing plea withdrawal and
ineffective assistance of counsel allegations. We then discuss our standard of
review of the ineffective assistance of counsel claim.

A. Standards for Plea Withdrawal and Ineffective Assistance of
Counsel, and Standard of Review.

¶13 A defendant is entitled to plea withdrawal upon showing, by clear
and convincing evidence, that “a refusal to allow withdrawal of the plea would
result in ‘manifest injustice.’” State v. Brown, 2006 WI 100, ¶18, 293 Wis. 2d
594, 716 N.W.2d 906 (citation omitted); State v. Taylor, 2013 WI 34, ¶24, 347
Wis. 2d 30, 829 N.W.2d 482. One method of showing a manifest injustice is by
establishing that Kuehn was deprived of the effective assistance of trial counsel.
State v. Dillard, 2014 WI 123, ¶84, 358 Wis. 2d 543, 859 N.W.2d 44; see State v.
Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996).

¶14 A defendant, such as Kuehn, alleging ineffective assistance of trial
counsel has the burden of proving both that counsel’s performance was deficient

8
The State refers to this person as “W.S.,” and we follow that lead.

6
No. 2018AP2355-CR

and that he suffered prejudice as a result of that deficient performance. Strickland
v. Washington, 466 U.S. 668, 687 (1984).

¶15 To prove deficient performance, the defendant must show that his
counsel’s representation “fell below an objective standard of reasonableness”
considering all the circumstances. See id. at 688. A defendant must overcome “a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” State v. Gutierrez, 2020 WI 52, ¶46, 391
Wis. 2d 799, 943 N.W.2d 870 (quoting Strickland, 466 U.S. at 689). This court’s
review is “highly deferential” and we do “not second-guess a reasonable trial
strategy, [unless] it was based on an irrational trial tactic or based upon caprice
rather than upon judgment.” State v. Breitzman, 2017 WI 100, ¶65, 378 Wis. 2d
431, 904 N.W.2d 93 (alteration in original and internal quotation marks omitted)
(quoting State v. Domke, 2011 WI 95, ¶¶36, 49, 337 Wis. 2d 268, 805 N.W.2d
364).

¶16 A defendant also must affirmatively prove that the alleged deficient
performance prejudiced him or her. Strickland, 466 U.S. at 693. To satisfy the
prejudice prong in the plea withdrawal context, the defendant must allege “that
there is a reasonable probability that, but for the counsel’s errors, he [or she]
would not have pleaded guilty and would have insisted on going to trial.” Bentley,
201 Wis. 2d at 312 (citation omitted).

¶17 On appeal, our standard of review is two-fold. This court accepts
the trial court’s findings of fact unless clearly erroneous; however, we review the
trial court’s application of constitutional principles to those facts de novo. State v.
Harvey, 139 Wis. 2d 353, 376, 407 N.W.2d 235 (1987). Therefore, the “legal
conclusions of whether the performance was deficient and prejudicial based on

7
No. 2018AP2355-CR

[the postconviction] factual findings … are questions of law independently
reviewed by this court.” State v. Delgado, 194 Wis. 2d 737, 750, 535 N.W.2d 450
(Ct. App. 1995).

B. Denny Evidence.9

¶18 A defendant, such as Kuehn, seeking to admit evidence that a known
third party, such as W.S., may have committed a crime the defendant is charged
with committing must satisfy all three prongs of Denny’s “legitimate tendency”
test. See State v. Wilson, 2015 WI 48, ¶¶51-52, 362 Wis. 2d 193, 864 N.W.2d 52.
First, the “motive” prong asks: “[D]id the alleged third-party perpetrator have a
plausible reason to commit the crime?” Id., ¶57. Second, the “opportunity” prong
asks: “[D]oes the evidence create a practical possibility that the third party
committed the crime?” Id., ¶58. Third, the “direct connection” prong asks: “[I]s
there evidence that the alleged third-party perpetrator actually committed the
crime, directly or indirectly?” Id., ¶59.

¶19 As part of our analysis, we will assume (without deciding) that the
Denny evidence Kuehn now alleges against W.S. would have been admissible if
Kuehn had gone to trial on the fifteen possession of child pornography charges
brought against him.

¶20 With that background in mind, we now discuss whether trial
counsel’s performance was deficient.

9
See State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984). We use the
term “Denny evidence” as another term for third-party perpetrator evidence.

8
No. 2018AP2355-CR

C. Trial Counsel’s Performance Was Not Deficient.

¶21 Kuehn alleges that his trial counsel’s performance was deficient
because counsel concluded that a third-party perpetrator defense against W.S. was
untenable and such a defense would reflect poorly on Kuehn with the trial court.
We reject Kuehn’s allegation of deficient performance for the following reasons.

1. Holmes and Wilson Are Not Applicable.

¶22 Relying on Holmes v. South Carolina, 547 U.S. 319, 329-31 (2006)
and Wilson, 362 Wis. 2d 193, ¶69, Kuehn asserts that trial counsel failed to pursue
introduction of Denny evidence because counsel erroneously believed that such
evidence was inadmissible based solely on the weakness of the evidence
implicating W.S. as compared to the strength of the evidence of Kuehn’s guilt.
The State does not dispute that a defendant’s due process right to a meaningful
opportunity to present a complete defense is violated if, based solely on the fact
that the evidence against the defendant is strong, a rule of evidence or case law
bars from admission evidence that someone other than the defendant committed
the charged crimes. See Holmes, 547 U.S. at 329-31 and Wilson, 362 Wis. 2d
193, ¶69.

¶23 Kuehn’s reliance on Holmes and Wilson misses the mark. Initially,
and contrary to Kuehn’s assertion, Kuehn’s trial counsel did not testify at the
Machner hearing that the third-party perpetrator evidence regarding W.S. was
inadmissible because there was strong evidence of Kuehn’s guilt. In other words,
contrary to Kuehn’s assertions in this court, trial counsel did not testify that he
thought that the third-party perpetrator evidence was “foreclose[d].”

9
No. 2018AP2355-CR

¶24 Rather, counsel testified that the Denny evidence was so weak
relative to the evidence of Kuehn’s guilt that going to trial based on a weak theory
of the case (in other words, a theory that W.S. possessed the child pornography
instead of Kuehn) was bad strategy. Counsel testified: “[I]t seemed foolish to me,
and it would be an untenable defense.” He further testified: “And, you know,
such a defense would put Mr. Kuehn in a bad light if he went to trial and then
presented that type of defense.” Therefore, there is no factual basis to support
Kuehn’s assertion that his trial counsel was deficient because counsel failed to
understand Kuehn’s constitutional rights as pronounced in Holmes and Wilson.

¶25 In addition, the holdings of Holmes and Wilson do not support
Kuehn’s deficient performance argument. We agree with the State that Holmes
and Wilson do not compel counsel to pursue a third-party perpetrator after
investigation and a determination by counsel that such a defense would be weak
and counterproductive to counsel’s overall strategy. Holmes and Wilson concern
the admissibility of third-party perpetrator evidence, not the question before this
court of whether counsel’s strategy to not present such evidence was reasonable.

¶26 We now discuss whether trial counsel’s strategy was “within the
wide range of reasonable professional assistance.” See Gutierrez, 391 Wis. 2d
799, ¶46 (citation omitted).

2. Counsel’s Strategy Was Reasonable.

¶27 The postconviction court determined that a trial defense attempting
to blame W.S. would lack merit and be poor strategy and, as a result, concluded
that trial counsel’s decision not to present Denny evidence was a reasonable
conclusion and not deficient performance. We agree and, for the reasons
discussed next, conclude that it was within the bounds of reasonable representation

10
No. 2018AP2355-CR

for Kuehn’s trial counsel to make the strategic decision not to present a weak
defense regarding W.S. as the perpetrator.10

¶28 We start by considering the strength of the evidence against Kuehn.
Because that information was relevant to then-pending motions, the State made a
pretrial proffer to the trial court demonstrating the strength of the evidence
incriminating Kuehn, including establishing Kuehn’s connections to the particular
Samsung phone which contained the child pornography images. We now
summarize that evidence with the elements of the crime of possession of child
pornography in mind.11

10
During the plea colloquy, Kuehn acknowledged that he and his trial counsel “had
pretty substantial conversations about whether to go to trial, how trial might work out, pros and
cons of that and whether to take this plea.” The postconviction court concluded, and Kuehn does
not dispute, that Kuehn provided counsel with information regarding his belief that W.S.
possessed the child pornography. Accordingly, trial counsel obtained discovery materials and
additional information about W.S.’s purported culpability, and trial counsel discussed the
possibility of filing a Denny motion for the admission of such evidence.
11
WISCONSIN JI—CRIMINAL 2146A states in pertinent part:

Elements of the Crime That the State Must Prove

1. The defendant knowingly []possessed a
recording[]…. []“Possessed” means that the defendant
knowingly had actual physical control of the recording.[]

….

[]It is not required that a person own a recording in order
to possess it. What is required is that the person exercise control
over the recording.[]

….

“Recording” means a reproduction of an image … or the
storage of data representing an image ….

2. The recording showed a child engaged in sexually
explicit conduct.
(continued)

11
No. 2018AP2355-CR

 Kuehn conceded that he owned and used the Samsung phone.

 The Samsung phone was used to access several email accounts, each
including the name “will” in the email address.12 One such email
address, bigwill00778@gmail.com, was the address connected to the
information that began the child pornography possession
investigation of Kuehn.

 A Milwaukee police detective determined that the “will” email
accounts found on the Samsung phone were used to send and receive
hundreds of images of child pornography, and that images found on
these email accounts were also found on the Samsung phone.

 Analysis of the Samsung phone showed a Skype account on the
Samsung phone under the name “williamkuehn,” along with several
accounts under the name “willgood” for a Russian search engine
used to share child pornography.

A child is a person who is under the age of 18 years.

….

3. The defendant knew or reasonably should have
known that the recording contained depictions of a person
engaged in actual or simulated [sexually explicit conduct].

4. The defendant knew or reasonably should have
known that the person []shown in the recording[] … engaged in
sexually explicit conduct was under the age of 18 years.

(Modified for the instant case.)
12
“[W]ill” is not a shortened version of W.S.’s first name.

12
No. 2018AP2355-CR

 Based on electronic information associated with the Samsung phone,
a Milwaukee police detective determined that the Samsung phone
was used to surf a website used to share child pornography. That
website was accessed through the Cudahy Public Library’s website
at the same time that the detective saw Kuehn parked outside that
library.

 Kuehn’s ex-girlfriend was listed as the Samsung phone’s subscriber,
and the billing address was a residence belonging to Kuehn’s father.

 Call records for the Samsung phone showed calls between that
phone and Kuehn’s father, W.S., and attorneys who represented
Kuehn in several matters.

 The Samsung phone showed Facebook exchanges between Kuehn
and his ex-girlfriend, whose name appeared on a contact list in the
phone.

 In addition to the evidence connecting Kuehn to the Samsung
phone’s contents, the State also proffered other-acts evidence
alleging Kuehn’s longstanding sexual interest in prepubescent
children and evidence that several images depicting naked children
were torn from library books that Kuehn had checked out from a
public library.

¶29 The purported evidence against W.S. can reasonably be summarized
as follows, and we consider the alleged evidence in light of the Denny three-prong
framework. To establish motive, Kuehn relies on W.S.’s 1985 conviction for
sexual assault of a fourteen-year-old girl. To establish W.S.’s opportunity and a

13
No. 2018AP2355-CR

direct connection to the Samsung phone used to access the child pornography,
Kuehn relies on W.S.’s listing as the subscriber for one IP address used to access
child pornography, W.S.’s alleged presence with Kuehn at locations where the
phone was used to download child pornography, and W.S.’s purported access to
the Samsung phone in W.S.’s vehicle. We observe that, unlike the evidence
linking Kuehn to the accounts on the Samsung phone, Kuehn has not identified
any account activity, lawful or otherwise, that suggested W.S. used that phone.

¶30 We agree with the State, Kuehn’s trial counsel, and the
postconviction court that the evidence against Kuehn was strong, and any
connection between W.S. and the crimes Kuehn was charged with was, at best,
tenuous. Therefore, counsel could reasonably conclude that, if the case went to
trial and the Denny evidence was presented regarding W.S.’s culpability, there
was a very high likelihood that Kuehn would be convicted of fifteen counts of
possession of child pornography, each a class D felony with a maximum initial
confinement of fifteen years and ten years extended supervision. See WIS. STAT.
§§ 939.50(3)(d), 948.12(3)(a), and 973.01(2)(b)4. and (d)3. Further, by going to
trial, Kuehn would have taken no responsibility for his actions and would have
tried to blame the crimes on someone else. Trial counsel could also reasonably
conclude that those facts would put Kuehn in an even more negative light with the
trial court for purposes of sentencing as opposed to pleading guilty to the five
counts of possession of child pornography and accepting responsibility for his
actions.

14
No. 2018AP2355-CR

¶31 In sum, we conclude that trial counsel’s representation of Kuehn was
not deficient, and Kuehn’s ineffective assistance of counsel argument fails.13

II. Images Associated With the Crime.

¶32 Next, Kuehn contends that the trial court erred in imposing the child
pornography surcharge for the ten images which formed the bases for each of the
ten read-in offenses. We begin our analysis by discussing the applicable
authorities and our standard of review.

A. Applicable Authorities and Standard of Review.

¶33 WISCONSIN STAT. § 973.042(2) is the statutory subpart at issue, and
we repeat it for context:

If a court imposes a sentence or places a person on
probation for a crime under [WIS. STAT. §§] 948.05 or
948.12 and the person was at least 18 years of age when the
crime was committed, the court shall impose a child
pornography surcharge of $500 for each image or each
copy of an image associated with the crime. The court
shall determine the number of images or copies of images
associated with the crime by a preponderance of the
evidence and without a jury.

¶34 Unless the findings are clearly erroneous, we defer to the trial
court’s findings which determined, as required by WIS. STAT. § 973.042(2), the
“number of images … associated with the crime.” See State v. Smiter, 2011 WI

13
Because of our determination on the deficient performance prong, we need not reach
the prejudice prong of the ineffective assistance of counsel analysis. Also, we need not reach the
State’s argument that Kuehn’s guilty pleas waived his ineffective assistance of counsel
arguments.

15
No. 2018AP2355-CR

App 15, ¶9, 331 Wis. 2d 431, 793 N.W.2d 920 (stating factual findings are subject
to the clearly erroneous standard).14

¶35 Our analysis requires interpretation of a statute. “[T]he purpose of
statutory interpretation is to determine what the statute means so that it may be
given its full, proper, and intended effect.” State ex rel. Kalal v. Circuit Ct. for
Dane Cty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. “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., ¶45. Both a statute’s context and the structure “in
which [its] operative language appears” is important to its meaning. Id., ¶46.
“Therefore, statutory language is interpreted in the context in which it is used; not
in isolation but as part of a whole; in relation to the language of surrounding or
closely-related statutes; and reasonably, to avoid absurd or unreasonable results.”
Id.

B. Analysis.

1. Trial Court Determination and Matters Not in Dispute.

¶36 The trial court determined the following on this issue: “I think [the
ten images are] all associated with the crime, the crime here being the five images

14
No evidentiary hearing was held by the trial court to determine the number of images
associated with the crime. But, such an evidentiary hearing was not requested, and Kuehn does
not argue on appeal that the statute requires an evidentiary hearing. In addition, Kuehn does not
contend that an evidentiary hearing would have changed the result or our discussion of this issue.

16
No. 2018AP2355-CR

that he was convicted of and then the dismissed-and-read-in charges.”15 The
postconviction court agreed with the trial court’s determination.

¶37 Kuehn concedes that he is liable for the surcharge for the five
images which formed the bases for the five counts he was convicted of under WIS.
STAT. § 948.12(1m). The parties also do not dispute the following about the read-
in offenses images: (a) those are “images” as that term is used in WIS. STAT.
§ 973.042; (b) Kuehn was over eighteen years old at the time of his conviction;
(c) the trial court imposed a sentence under § 948.12(1m); and (d) the images
constituted child pornography under Wisconsin law.

¶38 As a result, the sole question we must decide is whether the phrase
“image associated with the crime” in WIS. STAT. § 973.042(2) includes, in this
factual scenario, the ten images which formed the bases for the read-in offenses.

2. Meaning of “Associated.”

¶39 The word “associated” and the phrase “associated with the crime”
are not defined in WIS. STAT. § 967.02 (defining words and phrases in WIS. STAT.
chs. 967 to 979), nor is that word or phrase defined in WIS. STAT. § 973.042. Our
research shows that § 973.042(2) is the only instance in which the phrase
“associated with the crime” is used in the Wisconsin Statutes.

15
The parties do not dispute for purposes of this appeal that Kuehn had in his possession
a total of 462 images of what the State contends is child pornography. We do not determine if
each of those 462 images were “associated with the crime” under WIS. STAT. § 973.042(2)
because the trial court ruled only that the ten images which formed the bases for the read-in
offenses were “associated with the crime,” and the State does not ask us to reverse that order.

17
No. 2018AP2355-CR

¶40 We may refer to a dictionary to assist us in interpreting statutes.
Town of Grant v. Portage Cty., 2017 WI App 69, ¶40, 378 Wis. 2d 289, 903
N.W.2d 152. In this context, “associated” is defined as “[c]onnected in thought,
mentally related.” OXFORD ENGLISH DICTIONARY,
https://www.oed.com/view/Entry/11976?rskey=2n1wss&result=2&isAdvanced=fa
lse#eid (last visited July 23, 2020).

3. The Ten Images Were Associated With the Crime.

¶41 For the following reasons, we conclude that the ten images were
“associated with the crime.”

¶42 First, the language of WIS. STAT. § 973.042(2) does not require that,
for the surcharge to be imposed, the image must be the basis for a conviction.
Other crime surcharge statutes state that those particular surcharges are imposed
only for “each conviction” (or virtually identical language). See, e.g., WIS. STAT.
§§ 973.043(1), 973.045(1)(a) and (b), 973.0455(1) (2017-18), and 973.046(1r)(a)
and (b). Here, the legislature has not tied the imposition of a surcharge to only a
conviction. Instead, our legislature cast a wider net and allows a trial court to
impose a surcharge when the trial court makes a factual determination that an
image is “associated with the crime.”

¶43 Second, from a factual standpoint, the ten images were “[c]onnected
in thought” and “mentally related” to the crime. The Presentence Investigation
Report shows that the child pornography images which formed the bases for the
read-in offenses were received on the same email accounts, and with the same
device, as the images associated with the five counts of possession of child
pornography for which Kuehn was convicted. Kuehn did not state at the time of
sentencing, and does not argue now, that such information in the Presentence

18
No. 2018AP2355-CR

Investigation Report is incorrect. Therefore, that information supports the trial
court’s determination that those ten images were “associated with the crime.”16

¶44 In light of the plain language of WIS. STAT. § 973.042(2), and
because we defer to the trial court’s factual determination of the number of
“images associated with the crime,” we do not conclude that the trial court’s
findings were clearly erroneous.

4. Kuehn’s Arguments.

¶45 Kuehn argues that the trial court’s conclusion is incorrect, and we
reject each argument.

¶46 First, relying on the restitution statute, WIS. STAT. § 973.20, Kuehn
contends that the images which formed the bases for the read-in offenses cannot
be “associated with the crime” of possession of child pornography.
Section 973.20(1g)(b) and (1r) define “read-in crime” and then state that
restitution can be ordered for a “read-in crime.” Kuehn asserts that, because the
legislature did not place “[e]quivalent” language in WIS. STAT. § 973.042(2)
defining what constitutes a read-in crime and did not explicitly state that a read-in
crime can be the basis for this surcharge, the legislature meant to exclude read-in
offenses from the phrase “associated with the crime.” Kuehn’s argument fails.

¶47 Because WIS. STAT. §§ 973.042(2) and 973.20 use different
phrasing, that does not foreclose the possibility that a read-in offense can be

16
That conclusion is correct whether the phrase “associated with the crime” refers to the
crime of possession of child pornography in the abstract or if that phrase refers to the five counts
of possession of child pornography for which Kuehn was convicted.

19
No. 2018AP2355-CR

“associated with the crime” under § 973.042(2), and Kuehn gives no viable basis
for his argument. Put another way, there is no requirement that each statute which
may generally refer to the same subject use the same language. Moreover,
§§ 973.042(2) and 973.20 would not use the same statutory language because the
legislature did not intend the statutes to be synonymous. While § 973.20(1g)(b)
and (1r) refer to only read-in offenses, § 973.042(2) does not necessarily draw the
line at only read-in offenses. That statutory subpart refers to a category of images
that include, but are not limited to, images which may form a basis for a read-in
offense. In those circumstances, the language of the two statutes would not be
identical in light of the separate aims of the separate statutes.

¶48 Second, Kuehn argues that the phrase in WIS. STAT. § 973.042(2)
which states that a surcharge shall be imposed “[i]f a court imposes a sentence or
places a person on probation” will be rendered “superfluous” if the phrase “image
… associated with the crime” includes images which formed the basis for read-in
offenses. This argument fails because the phrase Kuehn refers to is not a
definition of “image … associated with the crime.” Rather, that phrase is one
condition precedent to imposition of the child pornography surcharge. We fail to
see how that language becomes superfluous in this context.

¶49 In sum, we affirm the trial court’s determination that the images
which form the bases for the ten read-in offenses were “associated with the crime”
pursuant to WIS. STAT. § 973.042(2).

III. Condition of Extended Supervision.

¶50 Finally, Kuehn contends that the trial court’s order barring Kuehn
from contact with J.S. is overly broad and not reasonably related to his
rehabilitation and, as a result, improperly infringes on his constitutional right to

20
No. 2018AP2355-CR

freedom of association. We begin our discussion by considering applicable
authorities and our standard of review.

A. Applicable Authorities and Standard of Review.

¶51 WISCONSIN STAT. § 973.01(5) states: “Whenever the court imposes
a bifurcated sentence under sub. (1), the court may impose conditions upon the
term of extended supervision.”17 “Sentencing courts have wide discretion and
may impose any conditions of probation or supervision that appear to be
reasonable and appropriate.” State v. Stewart, 2006 WI App 67, ¶11, 291 Wis. 2d
480, 713 N.W.2d 165.

¶52 The freedom to associate is a protected constitutional right. See City
of Milwaukee v. Burnette, 2001 WI App 258, ¶17, 248 Wis. 2d 820, 637 N.W.2d
447. However, “[c]onvicted felons do not enjoy the same degree of liberty as
those individuals who have not been convicted of a crime.” Stewart, 291 Wis. 2d
480, ¶12. Therefore, “[t]he conditions [of extended supervision] may impinge
upon constitutional rights as long as they are not overly broad and are reasonably
related to the person’s rehabilitation.” Id., ¶12.

¶53 When a defendant challenges a condition of extended supervision as
unreasonable on appeal, the reviewing court must determine whether the trial court
erroneously exercised its discretion in ordering the condition. State v. Miller, 175
Wis. 2d 204, 208, 499 N.W.2d 215 (Ct. App. 1993). We review de novo whether

17
The parties agree that the no-contact order with J.S. will be in effect only for the time
that Kuehn is released on extended supervision.

21
No. 2018AP2355-CR

a condition of supervision violates a defendant’s constitutional rights. Stewart,
291 Wis. 2d 480, ¶12.

B. Analysis.

¶54 As noted, the trial court ordered Kuehn to have no contact with J.S.
The trial court found that Kuehn posed “a grave danger to society.” But the State
concedes, and we agree, that the trial court did not state its reasoning for the no-
contact order with J.S. It would have been preferable for the trial court to state a
basis for the no-contact order with J.S. Nonetheless, we may search the record to
determine whether to uphold a trial court’s exercise of sentencing discretion.
State v. Young, 2009 WI App 22, ¶29, 316 Wis. 2d 114, 762 N.W.2d 736. Such a
basis is found in undisputed facts in the record.

¶55 At the time Kuehn committed these offenses, J.S. had two sons, a
ten-year-old and a two-year-old from a previous relationship, and a third son with
Kuehn. Kuehn also had two sons with his ex-wife, at that time an eleven-year-old
and a nine-year-old. According to the complaint, Kuehn asked an unnamed
individual, in an email exchange, if he was interested in “boys or girls[.] I have
three sons.” Later, Kuehn told that other individual, “[Y]ou can have my boys[,]
how much will you pay[?]” The unnamed person replied, “400 for both?”

¶56 The Presentence Investigation Report states and Kuehn does not
dispute that, during his pretrial incarceration and up to the time of sentencing, he
and J.S. “still [wrote] letters to each other and talk[ed] on the phone” and that
“[Kuehn and J.S.] remain a couple and have been in contact … since his
incarceration.” Indeed, Kuehn’s briefing in this court refers to J.S. in the present
tense as Kuehn’s “girlfriend.” Also, at the sentencing hearing, Kuehn’s attorney
stated that Kuehn “wants to have a relationship with [J.S.] in the future.”

22
No. 2018AP2355-CR

¶57 J.S. wants a continuing relationship with Kuehn even after the email
exchange in which Kuehn attempted to sell her child and after knowing that
Kuehn has possessed child pornography. A reasonable conclusion is that J.S. does
not appreciate the gravity of Kuehn’s actions, and J.S. will not protect minors from
Kuehn while Kuehn is on extended supervision.18

¶58 Kuehn argues that it is unreasonable to have a no-contact order with
J.S. when there is already in place an order barring Kuehn from having contact
with minors while on extended supervision. But, the presence of that order does
not lead to the conclusion that it is unreasonable for the trial court to impose
another order which has the same goal to protect children, and Kuehn gives no
reasoning to support his argument.

¶59 We conclude that the no-contact order with J.S. while on extended
supervision is not overbroad or unreasonable because it is reasonably related to
Kuehn’s rehabilitation and protection of the public. Therefore, the order does not
improperly infringe on Kuehn’s constitutional right to freedom of association, and
the order is not an erroneous exercise of the trial court’s discretion.

18
The postconviction court concluded that the no-contact with J.S. order is appropriate
because Kuehn must “devote 100% of his attention to his rehabilitation” while on extended
supervision. While we affirm the orders of the trial court and the postconviction court, we agree
with Kuehn that this particular aspect of the postconviction court’s rationale does not support the
no contact order with J.S. There is neither a starting point nor and end-point to that specific
reasoning set out by the postconviction court. Virtually any activity of a defendant while on
supervision could be banned on that basis because almost every activity distracts a defendant
from rehabilitation as described by the postconviction court.

23
No. 2018AP2355-CR

CONCLUSION

¶60 For the foregoing reasons, the judgment and order of the trial court
and postconviction court are affirmed.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.

24