State v. Matthew L. La Brec

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.
January 23, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2021AP2110-CR Cir. Ct. No. 2016CF326

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MATTHEW L. LA BREC,

DEFENDANT-APPELLANT.

APPEAL from a judgment and orders of the circuit court for
Chippewa County: STEVEN R. CRAY and BENJAMIN J. LANE, Judges.
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).
No. 2021AP2110-CR

¶1 PER CURIAM. Matthew La Brec, pro se, appeals a judgment
convicting him of possession of a firearm by a felon and armed robbery with the
use of force. He also appeals portions of orders denying his motions for
postconviction relief.1 La Brec argues that he is entitled to withdraw his guilty
plea to armed robbery with the use of force because the criminal complaint the
circuit court relied upon in taking his plea did not establish a factual basis for that
plea. He also argues that his trial counsel was constitutionally ineffective by
failing to inform him that the court was required to establish a factual basis to
support his guilty plea. If he is entitled to withdraw his plea, La Brec requests that
he be allowed to modify his plea to second-degree reckless homicide, as a party to
a crime, or attempted armed robbery. Finally, La Brec argues that he is entitled to
sentence modification because he and his co-defendant, Jesse Lloyd, received
similar sentences with respect to initial confinement, despite Lloyd’s greater
culpability. We reject La Brec’s arguments and affirm.

BACKGROUND

¶2 According to the criminal complaint, on March 14, 2016, La Brec
and Lloyd picked up Kyle and drove to a house near Lake Wissota.2 Kyle
believed La Brec and Lloyd were intending to sell narcotics to him. La Brec and
Lloyd, however, planned to rob Kyle in retribution for Kyle having “ripped off”

1
The Honorable Steven R. Cray entered the judgment of conviction and the order
denying La Brec’s first postconviction motion. The Honorable Benjamin J. Lane entered the
order denying La Brec’s second postconviction motion.
2
Although not required by WIS. STAT. RULE 809.86 (2021-22), we refer to the homicide
victim in this case using a pseudonym to protect his family’s privacy. All references to the
Wisconsin Statutes are to the 2021-22 version unless otherwise noted.

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La Brec in the past and because they needed money. La Brec was armed with a
sawed-off .22 caliber rifle, and Lloyd was armed with a handgun.

¶3 As Lloyd, La Brec and Kyle stood near the deck of the house, Lloyd
suddenly shot Kyle in the leg. At the same time, La Brec pulled out his rifle,
pointed it at Kyle, and pulled the trigger, but the rifle did not fire. Kyle ran away.
La Brec and Lloyd chased Kyle, but La Brec eventually stopped to look for a piece
of his rifle that had fallen off during the chase. When La Brec and Lloyd could
not find Kyle, they left the area. Kyle eventually bled out and died as a result of
the gunshot wound.

¶4 The State charged La Brec with first-degree intentional homicide as
a party to a crime and possession of a firearm by a felon. The State later filed an
Information with the additional charge of armed robbery with the use of force. On
the same day that the State filed the Information, La Brec and the State reached a
plea deal. La Brec filed a plea questionnaire/waiver of rights form, with a plea
agreement attached to the form. In the plea agreement, La Brec agreed to enter
guilty pleas to possession of a firearm by a felon and armed robbery with the use
of force. La Brec also agreed to cooperate in the prosecution of Lloyd and other
individuals involved in Kyle’s death. In exchange, the State agreed to dismiss and
read in the first-degree intentional homicide charge and to cap its sentencing
recommendation at the recommendation contained in the presentence investigation
report (PSI).

¶5 At the plea hearing, La Brec confirmed that he understood the
maximum penalties for each charge and that he had read and understood the plea
questionnaire. He also confirmed that he understood the rights he gave up by
entering guilty pleas and that he understood the elements the State would have

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needed to prove for each charge to which he was pleading guilty. The circuit court
informed La Brec of the elements of armed robbery with the use of force including
the element that La Brec was “involved in the taking and carrying away of
property from a person or the presence of the owner of the property.” La Brec’s
attorney confirmed that the probable cause section of the criminal complaint
provided the factual basis to support La Brec’s pleas. The court accepted
La Brec’s guilty pleas and found that he had entered them knowingly, voluntarily
and intelligently.

¶6 The circuit court later sentenced La Brec. For the armed robbery
with the use of force count, the court imposed a twenty-six-year sentence
consisting of twenty years of initial confinement followed by six years of extended
supervision. For the possession of a firearm by a felon count, the court imposed a
concurrent six-year sentence consisting of three years of initial confinement
followed by three years of extended supervision.

¶7 After sentencing, La Brec filed his first postconviction motion
seeking to withdraw his pleas. La Brec alleged that he received ineffective
assistance of counsel because his trial counsel failed to explain to him that only the
State was bound by the PSI recommendation and that the circuit court could
impose a longer sentence than those recommended by either the State or the PSIs.3
La Brec also alleged that his trial counsel failed to raise “competency [and] NGI
defense issues.” After an evidentiary hearing, the court denied La Brec’s motion,
but it allowed La Brec to file a supplemental motion on an issue that
postconviction counsel identified during the hearing. Specifically, the issue was

3
La Brec had an alternative PSI completed.

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No. 2021AP2110-CR

whether there was sufficient evidence to support a factual basis for La Brec’s
guilty plea to armed robbery with the use of force.

¶8 La Brec then filed a supplemental postconviction motion arguing
that under State v. Harrell, 182 Wis. 2d 408, 513 N.W.2d 676 (Ct. App. 1994), the
criminal complaint did not provide a factual basis for his plea to armed robbery
with the use of force because that crime and first-degree intentional homicide are
not reasonably related offenses. The State responded that the criminal complaint
established a factual basis for felony murder, which is reasonably related to, and
more serious than, armed robbery with the use of force. Therefore, the State
argued, the Harrell rule was satisfied.

¶9 The circuit court agreed with the State. It concluded that the
probable cause section of the criminal complaint established a factual basis for the
greater, more serious offense of felony murder, which is reasonably related to
armed robbery with the use of force. Thus, the court concluded that La Brec’s
plea was valid under Harrell, and it denied his supplemental postconviction
motion.

¶10 La Brec initially appealed the circuit court’s denial of his
supplemental postconviction motion, but his postconviction counsel then moved to
withdraw. We granted the motion to withdraw, dismissed the pending appeal, and
extended the time for La Brec to file another postconviction motion. La Brec,
proceeding pro se, then filed a second postconviction motion. In that motion,
La Brec alleged that: (1) no factual basis existed to support his guilty plea to
armed robbery with the use of force; (2) the court relied on inaccurate information
at sentencing; (3) his trial counsel was ineffective because he did not inform
La Brec that the court was required to establish a factual basis to support his guilty

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No. 2021AP2110-CR

plea to the armed robbery charge before accepting his plea, failed to investigate
La Brec’s mental health history, failed to raise an involuntary intoxication defense,
and failed to contest inaccurate information at sentencing; (4) his sentences were
too similar to Lloyd’s, with respect to the initial confinement portion, even though
La Brec cooperated with law enforcement and entered a guilty plea while Lloyd
did not; and (5) new factors supported sentence modification. La Brec requested a
hearing and proposed that a different charge, such as attempted armed robbery or
second-degree reckless homicide, “be chosen to replace [his] plea to Armed
Robbery with Use of Force, that balances the interest of both sides.”

¶11 The circuit court denied La Brec’s motion without an evidentiary
hearing. In particular, it reaffirmed its earlier decision that there was a valid
factual basis for La Brec to plead to the lesser offense of armed robbery with the
use of force, and, therefore, his trial counsel was not ineffective. The court also
rejected La Brec’s challenge to his sentence on the basis that Lloyd was more
culpable because La Brec failed to demonstrate “any requirement for the court to
sentence him differently than his co-defendant.” La Brec now appeals. Additional
facts will be provided as necessary below.

DISCUSSION

¶12 On appeal, La Brec does not renew all of the claims from his second
postconviction motion. La Brec renews only his claims regarding the factual basis
for his plea, ineffective assistance of counsel based on trial counsel’s failure to
inform him that the circuit court was required to establish a factual basis to support
his plea, the “improper” similarities between his and Lloyd’s sentences, and the
appropriate remedy if he is entitled to withdraw his guilty plea. La Brec also does
not renew any of his ineffective assistance of counsel claims raised in his first

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No. 2021AP2110-CR

postconviction motion. We therefore deem all unraised claims abandoned.
See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d
285 (Ct. App. 1998) (“[A]n issue raised in the [circuit] court, but not raised on
appeal, is deemed abandoned.”).

I. Plea withdrawal based on the lack of a factual basis for the pled-to crime

¶13 A defendant is entitled to withdraw a plea after sentencing “only
upon a showing of ‘manifest injustice’ by clear and convincing evidence.” State
v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996) (citation omitted). A
manifest injustice occurs when the “circuit court fails to establish a factual basis
that the defendant admits constitutes the offense pleaded to.” State v. Thomas,
2000 WI 13, ¶17, 232 Wis. 2d 714, 605 N.W.2d 836. Because the factual basis for
La Brec’s plea “derives solely from a document in the record,” whether that
factual basis supports his plea is a question of law that we review de novo. See
State v. Peralta, 2011 WI App 81, ¶16, 334 Wis. 2d 159, 800 N.W.2d 512.

¶14 Before a circuit court accepts a guilty plea, it must be satisfied “that
the defendant in fact committed the crime charged.” WIS. STAT. § 971.08(1)(b).
In other words, the court must establish “a sufficient factual basis that the
defendant committed the crime to which he or she is pleading.” State v. Smith,
202 Wis. 2d 21, 26, 549 N.W.2d 232 (1996). This requirement protects “a
defendant who pleads voluntarily and who understands the charges brought, but
does not realize that his or her conduct does not actually fall within the statutory
definition of the crime.” Harrell, 182 Wis. 2d at 418. The court must therefore
“examine the facts and be satisfied that the facts, if proven, would constitute the
crime charged and that the defendant’s conduct does not amount to a defense.” Id.

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No. 2021AP2110-CR

¶15 When a defendant enters a guilty or no-contest plea pursuant to a
plea agreement, however, the circuit court “is not required to go to the same length
to determine whether the facts would support the charge as it would if there were
no plea bargain.” Id. at 419. This rule “reflects the reality that often in the context
of a plea bargain, a plea is offered to a crime that does not closely match the
conduct that the factual basis establishes.” Id. Accordingly, when a defendant
enters a plea pursuant to a plea agreement, the factual basis requirement in WIS.
STAT. § 971.08(1)(b) is satisfied when “a factual basis is shown for either the
offense to which the plea is offered or to a more serious charge reasonably related
to the offense to which the plea is offered.” Harrell, 182 Wis. 2d at 419. This
principle applies “even when a true greater- and lesser-included offense
relationship does not exist.” Id.

¶16 Here, La Brec argues that armed robbery with the use of force is not
reasonably related to his originally charged offense of first-degree intentional
homicide and that Harrell requires that the reasonably related offense be the
offense charged in the criminal complaint. La Brec misreads Harrell, which does
not require that the reasonably related offense be the offense originally charged in
the criminal complaint. In Harrell, we concluded that the offense to which the
defendant pled (third-degree sexual assault) was reasonably related to the more
serious offense with which the defendant was originally charged (first-degree
sexual assault of a child). See id. We never stated, however, that the reasonably
related charge must be the offense originally charged. Thus, whether armed
robbery with the use of force and first-degree intentional homicide are reasonably
related is irrelevant because the reasonably related offense is not limited to the one
originally charged in the criminal complaint.

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No. 2021AP2110-CR

¶17 La Brec further argues that Harrell conflicts with an earlier case,
State v. Harrington, 181 Wis. 2d 985, 512 N.W.2d 261 (Ct. App. 1994), and that
our supreme court overruled Harrell in State v. Johnson, 207 Wis. 2d 239, 558
N.W.2d 375 (1997), by applying Harrington. We disagree that Harrell has been
overruled. First, while Johnson does cite Harrington, it merely does so in
approval of the appellate court’s proposition that by showing there is no factual
basis for a plea, a defendant establishes a manifest injustice by clear and
convincing evidence. Johnson, 207 Wis. 2d at 248. Johnson does not cite
Harrington for La Brec’s contention that the reasonably related charge providing
the basis for a plea must be the originally charged offense.

¶18 Second, Harrington did not reach the “reasonably related” analysis
addressed in Harrell. Although in Harrington we rejected an argument that
“because the complaint provides a factual basis for a plea to a more serious
offense, it also, as a matter of law, supports a plea to a lesser charge,” Harrington,
181 Wis. 2d at 990-91, there was no argument that the offense to which
Harrington pled was not reasonably related to a more serious offense. Nor did we
engage in an analysis of whether those offenses were reasonably related, which we
later addressed in Harrell. Thus, Harrington and Harrell are not necessarily
inconsistent.

¶19 Finally, subsequent cases have cited Harrell without questioning its
validity. See Smith, 202 Wis. 2d at 24; State v. West, 214 Wis. 2d 468, 480, 571
N.W.2d 196 (Ct. App. 1997). Thus, Harrell remains good law and applies in this
case. We now turn to whether the allegations in the criminal complaint provide a
factual basis to support La Brec’s plea to armed robbery with the use of force.

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No. 2021AP2110-CR

¶20 The State acknowledges that the criminal complaint does not allege
that La Brec or Lloyd took property from Kyle,4 but it argues that the allegations
in the complaint provide a factual basis for the more serious offense of felony
murder. The elements of felony murder are: (1) the defendant attempted to
commit a crime specified in WIS. STAT. § 940.03, here armed robbery with the use
of force,5 and (2) the defendant’s attempt to commit that crime caused the death of
another human being. Sec. 940.03; see also WIS JI—CRIMINAL 1031 (2022).

¶21 Here, the factual allegations in the criminal complaint clearly satisfy
the elements of felony murder. Lloyd and La Brec planned to rob Kyle. They
picked him up and brought him to a secluded area, and they were armed. Both
Lloyd and La Brec pointed their weapons at Kyle. Lloyd then shot Kyle. La Brec
also attempted to shoot Kyle by pulling the trigger on his weapon, but it did not
fire. Kyle ran and later died as a result of the gunshot wound. In short, these facts
show that La Brec attempted to commit armed robbery with the use of force and
that Kyle died as a result of that attempt. Thus, the factual allegations in the
criminal complaint satisfy the elements of the offense of felony murder.

¶22 Felony murder is a more serious offense and reasonably related to
armed robbery with the use of force. Here, armed robbery with the use of force is

4
The elements of armed robbery with the use of force are: (1) the defendant took and
carried away property “from the person or presence of the owner”; (2) the defendant took the
property with intent to steal; (3) the defendant acted forcibly; and (4) the defendant used or
threatened to use a dangerous weapon. See WIS. STAT. § 943.32(1)(a), (2); see also WIS JI—
CRIMINAL 1480 (2016).
5
An attempt to commit a crime requires that the defendant, with an intent to commit the
crime, “does acts toward the commission of the crime which demonstrate unequivocally, under
all the circumstances, that the [defendant] formed that intent and would commit the crime except
for the intervention of another person or some other extraneous factor.” WIS. STAT. § 939.32(3);
see also WIS JI—CRIMINAL 1031 (2022).

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the underlying felony required for felony murder, and it is therefore a
lesser-included offense of felony murder.6 See State v. Krawczyk, 2003 WI App
6, ¶26, 259 Wis. 2d 843, 657 N.W.2d 77 (2002) (stating that the underlying felony
in felony murder is a lesser-included offense of felony murder). Felony murder is
also a more serious offense, given that the maximum sentence for felony murder is
greater than the maximum sentence for armed robbery with the use of force.
See WIS. STAT. § 940.03 (providing that a person convicted of felony murder
“may be imprisoned for not more than 15 years in excess of the maximum term of
imprisonment provided by law for” the underlying crime).

¶23 Because felony murder is a more serious offense that is reasonably
related to armed robbery with the use of force, and because the criminal complaint
provides a factual basis for felony murder, La Brec’s plea to the armed robbery
charge satisfies the factual basis requirement in WIS. STAT. § 971.08(1)(b).
Because the factual basis requirement is satisfied, La Brec has failed to show a
manifest injustice occurred, and he is therefore not entitled to withdraw his plea on
that basis.7

6
“[A]n offense is a ‘lesser included’ one only if all of its statutory elements can be
demonstrated without proof of any fact or element in addition to those which must be proved for
the ‘greater’ offense.” State v. Carrington, 134 Wis. 2d 260, 265, 397 N.W.2d 484 (1986)
(alteration in original; citation omitted); see also State v. Smits, 2001 WI App 45, ¶7, 241 Wis. 2d
374, 626 N.W.2d 42 (“Under the Blockburger [v. United States, 284 U.S. 299 (1932),] elements
only test, the ‘lesser offense must be statutorily included in the greater offense and contain no
element in addition to the elements constituting the greater offense.’” (citation omitted)).
Because felony murder requires proof of all the elements of armed robbery with the use of
force—and the additional element that the attempt to commit the crime caused the death of
another human being—and because armed robbery with the use of force does not require proof of
any additional fact or element needed to prove felony murder, it is a lesser-included offense of
felony murder. See WIS. STAT. §§ 940.03, 943.32(1), (2).
7
Because La Brec is not entitled to plea withdrawal on the grounds that there was no
factual basis for his plea, we do not reach his arguments regarding the appropriate remedy.

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No. 2021AP2110-CR

II. Plea withdrawal based on ineffective assistance of counsel

¶24 A manifest injustice also occurs when the defendant is “denied the
effective assistance of counsel.” Bentley, 201 Wis. 2d at 311. Whether a
defendant was denied the effective assistance of counsel in a constitutional sense
“is a mixed question of law and fact.” State v. Breitzman, 2017 WI 100, ¶37, 378
Wis. 2d 431, 904 N.W.2d 93. “The factual circumstances of the case and trial
counsel’s conduct and strategy are findings of fact, which will not be overturned
unless clearly erroneous.” Id. Whether trial counsel’s performance was deficient
and whether that deficient performance prejudiced the defendant are questions of
law we review de novo. Id., ¶¶38-39.

¶25 To demonstrate ineffective assistance of counsel, the defendant must
show both that “counsel’s performance was deficient” and that counsel’s deficient
performance “prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984). If a defendant fails to make a showing on one prong, we need not
address the other prong. Id. at 697. To demonstrate deficient performance, the
defendant must show that “counsel’s representation fell below an objective
standard of reasonableness.” Id. at 688. To demonstrate prejudice, the defendant
must show that “but for his [or her counsel’s] deficient performance, there is a
reasonable probability the outcome would have been different.” State v. Sholar,
2018 WI 53, ¶45, 381 Wis. 2d 560, 912 N.W.2d 89. A reasonable probability
means “a probability sufficient to undermine confidence in the outcome.” Id., ¶33
(quoting Strickland, 466 U.S. at 694).

¶26 La Brec argues that his trial counsel did not inform him that the
circuit court was required to find a factual basis to support his plea to armed
robbery with the use of force. Regardless of whether counsel was required to

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No. 2021AP2110-CR

inform La Brec that his plea must be supported by a factual basis, La Brec’s
argument is grounded solely on the notion that his plea was not supported by a
factual basis. Because we conclude the criminal complaint establishes a factual
basis for La Brec’s plea, La Brec’s counsel cannot have performed deficiently by
failing to inform La Brec of the factual basis requirement, as there was no basis for
La Brec to claim any error related to that requirement. As “counsel is strongly
presumed to have rendered adequate assistance,” Strickland, 466 U.S. at 690,
counsel is presumed to have researched the factual basis for the offenses La Brec
was charged with and understood Harrell’s application. Thus, counsel was not
deficient.

¶27 As a result, La Brec cannot demonstrate he received ineffective
assistance of counsel and has failed to establish a manifest injustice occurred.
Therefore, he is not entitled to plea withdrawal on this basis.

III. Similarity between La Brec’s and Lloyd’s sentences

¶28 La Brec also argues that he and his co-defendant, Lloyd, received
insufficiently disparate sentences given the facts of their individual cases, which
he further contends show “a fundamental unfairness.” We understand La Brec to
argue that his sentence, with respect to the initial confinement portion, is too
similar to Lloyd’s sentence, given the two actors’ relative culpability and other
factors, and therefore violates equal protection and warrants sentence
modification. To the extent La Brec seeks a sentence modification on this basis,
“[w]e review a motion for sentence modification by determining whether the
sentencing court erroneously exercised its discretion in sentencing the defendant.”
See State v. Noll, 2002 WI App 273, ¶4, 258 Wis. 2d 573, 653 N.W.2d 895.
Whether a defendant’s sentence relative to a co-actor’s sentence violates equal

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No. 2021AP2110-CR

protection is a question of law we review independently. See State ex rel. Schatz
v. McCaughtry, 2003 WI 80, ¶11, 263 Wis. 2d 83, 664 N.W.2d 596.

¶29 Equal protection requires “substantially the same sentence for
substantially the same case histories.” Ocanas v. State, 70 Wis. 2d 179, 186, 233
N.W.2d 457 (1975). “[T]he exercise of discretion dictates that different judges
will have different opinions as to what should be the proper sentence in a
particular case.” Id. at 187-88. Thus, a judge who imposes a sentence “in one
case cannot be bound by the determination made by a judge in another case.”
Id. at 188. A disparity—or similarity, in this case—in sentences for persons
convicted of the same crime is therefore proper as long as the individual sentences
are based upon each defendant’s “individual culpability and need for
rehabilitation.” See id. at 186.

¶30 La Brec received an aggregate sentence of twenty-six years
consisting of twenty years of initial confinement followed by six years of extended
supervision. Lloyd received an aggregate sentence of thirty-five years consisting
of twenty years of initial confinement followed by fifteen years of extended
supervision. La Brec argues that the differences in these sentences fail to account
for his lesser culpability insomuch as he assisted law enforcement, took a plea
instead of going to trial, and cooperated with the State in prosecuting Lloyd, while
Lloyd did not do any of these things, and, further, Lloyd was the one who actually
shot Kyle. Despite what he perceives as his lesser culpability, La Brec emphasizes
that he and Lloyd received the same amount of initial confinement time. La Brec
asserts that this similarity in the two sentences “show[s] a fundamental
unfairness.”

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No. 2021AP2110-CR

¶31 Here, the circuit court individually crafted La Brec’s sentence based
on appropriate factors, including La Brec’s individual culpability and need for
rehabilitation. The court considered La Brec’s involvement in his and Lloyd’s
plan to rob Kyle as well as La Brec’s history with Kyle. It also considered La
Brec’s involvement in the attempted robbery, including that La Brec attempted to
shoot Kyle, but his rifle did not fire when he pulled the trigger, and that La Brec
left Kyle to die. The court further considered La Brec’s cooperation with law
enforcement and noted it was a “significant factor” in its sentence. La Brec’s need
for rehabilitation was also a “definite factor” in the court’s sentence. Finally, the
court considered the gravity of the offense, the need to protect the public, and
La Brec’s rehabilitative needs. See State v. Gallion, 2004 WI 42, ¶¶40-44, 270
Wis. 2d 535, 678 N.W.2d 197.

¶32 La Brec simply disagrees with the weight the circuit court placed on
his cooperation with law enforcement and his decision to enter a plea rather than
going to trial, but his disagreement does not mean the court erroneously exercised
its discretion or violated La Brec’s equal protection rights. On the contrary, the
court imposed an appropriate sentence by considering, among other things,
La Brec’s individual involvement in the attempted robbery that ultimately led to
Kyle’s death, La Brec’s cooperation with law enforcement, and La Brec’s
rehabilitation needs. Thus, there is no equal protection violation and, to the extent
La Brec seeks it, no basis for sentence modification.

By the Court.—Judgment and orders affirmed.

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

15