State v. Pierre Cardell 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.
April 26, 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. 2021AP560-CR Cir. Ct. No. 2015CF828

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

PIERRE CARDELL BROWN,

DEFENDANT-APPELLANT.

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

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

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).
No. 2021AP560-CR

¶1 PER CURIAM. Pierre Cardell Brown appeals a judgment of
conviction for two counts of second-degree reckless homicide with the use of a
dangerous weapon as a party to the crimes. Brown also appeals from the order
denying his motion for sentence modification. Brown contends that his post-
sentencing assistance to law enforcement constitutes a new factor warranting
sentencing modification. Upon review, we affirm.

BACKGROUND

¶2 In 2015, Brown pled guilty to two counts of second-degree reckless
homicide with the use of a dangerous weapon as a party to the crimes. At the
sentencing hearing, the circuit court gave Brown credit for two events that took
place while Brown was incarcerated pretrial. The court acknowledged that Brown
intervened in a jailhouse assault on a guard and that Brown offered to testify against
an inmate who smuggled a firearm into the Milwaukee County Jail. The court stated
that it “put[] a lot of weight on” Brown’s efforts, but also discussed the lives lost as
a result of Brown’s actions. The court sentenced Brown to seventeen years of initial
confinement and ten years of extended supervision for each homicide, to run
consecutively.

¶3 In December 2019, Brown moved for sentence modification, arguing
that he provided “significant” post-sentencing assistance to law enforcement in the
investigation of two unsolved murders, leading to the arrest of three perpetrators—
Regis Grice, Cartrell Romel Kimble, and Joseph Berry-Williams. Specifically, the
motion stated that Brown “repeatedly debriefed law enforcement on [the murders],”
leading to the identification and arrest of the perpetrators, one of whom was
Brown’s friend. The motion also stated that Brown testified in Grice’s trial, was
willing to testify in the other two trials, and proffered incriminating testimony for

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No. 2021AP560-CR

Berry-Williams’s trial, which had not yet taken place. Brown further alleged that
his cooperation with law enforcement led to a prison fight that forced him to be
relocated to a prison in Minnesota and that his mother had received threats that
resulted in her moving to Illinois.

¶4 The State opposed the motion, noting that it had given Brown a proffer
letter with respect to the information he provided indicating that if the information
he offered led to charges against the perpetrators, Brown could bring a motion for
sentence modification and the State would advise the circuit court about Brown’s
cooperation and leave any sentence modification to the court’s discretion. The letter
also stated that Brown’s failure to cooperate would render the proffer letter null and
void. The State also noted that during Grice’s trial (the first trial), Brown and his
attorney met with the prosecutor and a detective “[t]o attempt to negotiate
consideration that the State might [offer Brown] in exchange for his testimony,” and
that Brown “was not satisfied with the way that negotiations were going” and would
likely refuse to testify. (Bolding omitted.) The State further stated that when Brown
took the stand in Grice’s trial, he failed to testify consistent with his earlier
statements to police, instead answering “I don’t recall,” “I don’t remember,” or
“[i]t’s a possibility” to numerous questions. (Bolding omitted.) Brown then refused
to testify at Kimble’s trial and the State subsequently informed Brown that he would
not be called as a witness at Berry-Williams’ trial.

¶5 At a hearing on the motion, Brown told the circuit court that he did
not remember details when he took the stand at Grice’s trial because he was afraid
for his life. Brown testified that he agreed to testify in Kimble’s trial, though his
counsel acknowledged that the motion for modification stated that he had refused.
Brown further admitted that he did not know whether the prison attack was related
to his cooperation with law enforcement, acknowledging that it might have been

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No. 2021AP560-CR

related to his cooperation in the smuggled firearm case or his intervention in the
attack on the corrections officer. At the close of the hearing, the circuit court
directed each party to file proposed findings of fact and conclusions of law.

¶6 The circuit court adopted the State’s findings of fact and conclusions
of law and denied the modification motion. This appeal follows.

DISCUSSION

¶7 On appeal, Brown contends that the circuit court erroneously denied
his motion for sentence modification because his post-sentencing assistance to law
enforcement constitutes a new factor warranting sentence modification. We
disagree.

¶8 A defendant alleging a new factor has the burden to show by clear and
convincing evidence that a new factor exists. State v. Harbor, 2011 WI 28, ¶36,
333 Wis. 2d 53, 797 N.W.2d 828. A new factor is “a fact or set of facts highly
relevant to the imposition of sentence, but not known to the trial judge at the time
of original sentencing, either because it was not then in existence or because, even
though it was then in existence, it was unknowingly overlooked by all of the
parties.” Id., ¶40 (quotation marks omitted). The existence of a new factor alone
does not, however, entitle a defendant to sentence modification. Id., ¶37. Rather,
the decision to modify a sentence upon proof of a new factor lies in the circuit
court’s discretion. Id. “Thus, to prevail, the defendant must demonstrate both the
existence of a new factor and that the new factor justifies modification of the
sentence.” Id., ¶38. If a defendant fails to make an adequate showing as to one
component of the analysis, the circuit court need not address the other. Id.

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No. 2021AP560-CR

¶9 “Whether a set of facts constitutes a new factor is a question of law
that we review de novo.” State v. Doe, 2005 WI App 68, ¶5, 280 Wis. 2d 731, 697
N.W.2d 101. By contrast, we review with deference the circuit court’s discretionary
determination of whether a new factor warrants sentence modification. See State v.
Verstoppen, 185 Wis. 2d 728, 741, 519 N.W.2d 653 (Ct. App. 1994). We will
sustain a discretionary decision if it is reasonably based on the facts of record and
an appropriate application of the law. See id. Our role as an appellate court is to
search the record for reasons to sustain a circuit court’s discretionary decision. See
State v. Thiel, 2004 WI App 225, ¶26, 277 Wis. 2d 698, 691 N.W.2d 388.

¶10 “[A] defendant’s substantial and important assistance to law
enforcement after sentencing may constitute a new factor” for sentence modification
purposes. Doe, 280 Wis. 2d 731, ¶1. The analysis of whether the claimed assistance
constitutes a new factor includes consideration of five criteria: (1) the significance
and usefulness of the assistance and the State's evaluation of the assistance rendered;
(2) the truthfulness, completeness, and reliability of the defendant’s information or
testimony; (3) the nature and extent of the assistance; (4) any injury or risk of injury
incurred by the defendant or his family as a consequence of the assistance; and (5)
the timeliness of the assistance. Id., ¶9.

¶11 We conclude that the record supports the circuit court’s denial of
Brown’s motion for sentence modification. With regard to Brown’s cooperation in
Grice’s conviction, the circuit court found that Brown provided cumulative
information because multiple other witnesses came forward and identified Grice as
one of the perpetrators. When the matter went to trial, Brown failed to answer
numerous questions on the witness stand and sought further negotiations with the
State. With regard to the other perpetrators, the circuit court found that information
provided by Brown did not lead to the charges filed against Kimble and Berry-

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No. 2021AP560-CR

Williams; that Brown’s testimony about being willing to testify against Kimble was
not credible; and that the State did not call Brown as a witness in Berry-Williams’s
trial because of Brown’s failure to previously cooperate. The court further found
that Brown failed to establish any risk of injury to himself or his family and that
Brown’s assistance was not timely. The circuit court properly evaluated all of the
Doe factors and found that Brown failed to satisfy his burden. In short, the circuit
court properly exercised its discretion.

¶12 For the foregoing reasons, we affirm the judgment of conviction and
the order denying Brown’s motion for sentence modification.

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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