State v. Osman A. Mirza

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 24, 2026
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. 2024AP176-CR Cir. Ct. No. 2020CF1099

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

OSMAN A. MIRZA,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waukesha County:
PAUL BUGENHAGEN, JR., Judge. Affirmed.

Before Neubauer, P.J., Gundrum, and Lazar, 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. Osman A. Mirza appeals the judgment convicting
him of stalking and criminal trespass to a dwelling, both as acts of domestic abuse.
No. 2024AP176-CR

See WIS. STAT. §§ 940.32(2), 943.14(2), & 968.075(1)(a) (2023-24).1 For the
reasons that follow, we affirm.

¶2 In August 2020, Mirza was charged with numerous crimes, including:
stalking, battery, intimidation of a victim, disorderly conduct, criminal trespass, and
false imprisonment—all relating to incidents involving Sally,2 his estranged wife.
Sally had petitioned for divorce in October 2019, and, according to the criminal
complaint, Mirza thereafter not only frequently came to her residence without her
knowledge or permission, but also battered her, coerced her to have sex with him,
and threatened her family.

¶3 For example, in one incident, which occurred during a brief period in
March 2020, when Sally and Mirza agreed to live together during the COVID-19
“Safer at Home” order, Mirza hit Sally and forced her to have sex with him without
her consent. During this incident, Sally called out to her Alexa device to call 911,
but Mirza grabbed it and threw it against the wall.

¶4 During another series of incidents that occurred after Mirza moved
back to his own residence, Mirza threatened, harassed, and battered Sally
throughout the course of a day. On that day, Mirza entered Sally’s home without
her consent. Upon seeing her there with another man, Mirza exposed his genitals
and said, “Let’s tag team her, bro.” Sally told Mirza to leave, which he did, but he
then sent her a stream of vulgar text messages. Later that day, when Sally went to
a friend’s house, Mirza arrived there, too, and was told to leave after he called Sally
derogatory names and flipped her over the back of the couch, causing her to land on

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
Pursuant to WIS. STAT. RULE 809.86(4), we use a pseudonym instead of the victim’s
name.

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No. 2024AP176-CR

her head and neck. Concerned for her safety, Sally asked her friend to drive by her
house before she went home. Her friend saw Mirza’s vehicle in Sally’s driveway
and the garage door open even though Sally had changed the garage door code.

¶5 Following those incidents, Mirza kept his and Sally’s children from
Sally for 18 days and demanded she have sex with him if she wanted them back.
She initially acquiesced, but during the act changed her mind and wanted to leave.
Mirza refused to let her go—pinning her down, threatening to break her arms, and
throwing her phone out of reach. Sally was forced to stay until Mirza let her leave
the next morning.

¶6 Later, when Sally blocked Mirza from all forms of communication
and told him that the Family Wizard application was the only way she would
communicate with him, Mirza circumvented this by using their son’s phone. From
their son’s phone, Mirza sent degrading messages and photos of her and returned
the phone to their son without deleting them.

¶7 When asked why she did not report these incidents to police when
they occurred, Sally said she “wanted to just get the divorce over with” and did not
want anything to slow it down. According to the complaint, forensic interviews
with Mirza’s and Sally’s two children revealed that Mirza frequently said “mean
stuff” about Sally and described inappropriate and violent things he was going to do
to her. The children also revealed that Mirza had on other occasions driven by
Sally’s house, broken in, and stolen her mail.

¶8 In June 2020, Mirza called Sally’s brother, who recorded the phone
call. In the recording Mirza called Sally vulgar names and told her brother:

You get a [] handle on your [] dumb sister because she is
affecting my kids and at some point I am going to cut her

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No. 2024AP176-CR

throat in a way that’s so [] SPECTACULAR that you …
would think September 11th is a [] joke. That’s how [] angry
I am.... [I really want] to punch her to death[.]

(Brackets indicate where explicit language has been omitted.)

¶9 A month later, Mirza also contacted Sally’s aunt and berated her for
allowing Sally to seek a divorce.

¶10 Finally, in July 2020, Sally’s home surveillance system captured
video of Mirza walking around Sally’s residence in the middle of the night and
looking in the windows. Sally reported she felt “‘uneasy and unsafe’ in her own
home” and was afraid that Mirza would harm her, especially after their youngest
child informed her that Mirza concealed a firearm in his waistband whenever they
exchanged custody.

¶11 Mirza initially pled not guilty to all charges and pretrial litigation
began. As relevant here, Mirza moved to suppress the recording of the June 2020
phone call. The circuit court denied Mirza’s motion to suppress, but withheld ruling
on how much of the recording would be admitted, concluding that it would rule on
admissibility as the evidence came in at trial.

¶12 The State offered a plea bargain under which Mirza would plead
guilty to felony stalking as well as any Class A misdemeanor for which he had been
charged. Mirza’s trial counsel advised him to take the plea. Trial counsel, who had
consulted with several other lawyers, was concerned about the phone recording and
the impact it would have on Mirza’s case.

¶13 Mirza—who was a criminal defense attorney himself—agreed to take
the plea offer the Thursday night before trial was set to begin, but he changed his

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No. 2024AP176-CR

mind early the next morning. That morning Mirza and trial counsel exchanged
heated words, then cooled off, apologized, and resumed preparing exhibits together.

¶14 Then, around noon the Friday before trial, Mirza told trial counsel he
had reconsidered and wanted to accept the plea. Trial counsel prepared the
necessary forms and scheduled a plea hearing for later that afternoon, as the offer
was set to expire at the end of the day. Mirza pled guilty to one count of stalking
and one count of misdemeanor criminal trespass, and the circuit court went through
the standard plea colloquy with him. The court set sentencing for about two months
later.

¶15 Mirza subsequently hired new counsel and moved to withdraw his
plea prior to sentencing, claiming that: (1) trial counsel coerced him into accepting
the plea by yelling at him, and (2) he did not understand the plea. Following a
hearing where Mirza and trial counsel both testified, the circuit court denied the
motion, finding that Mirza knowingly, intelligently, and voluntarily entered his plea
and that the plea was not coerced.

¶16 In finding that Mirza’s plea was not coerced, the circuit court noted
that the fact that an attorney yells at a client does not, by itself, automatically
indicate coercion. In addition, the trial court found the timing of the argument and
heated language significant:

[T]his isn’t a case where the attorney was yelling at
Mr. Mirza in the conference room seconds before the
hearing, swearing at him[.]… That conduct occurred, [but]
it was clear that the parties had gone back to work to prepare
for trial and Mr. Mirza made a decision after things had
cooled. So I don’t find that it was a coerced plea based upon
that record.

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No. 2024AP176-CR

¶17 The circuit court further determined that any confusion about the
terms of the plea agreement that might have arisen on the Thursday evening before
the hearing had been “ironed out” the next day. Also, the court found the fact that
plea negotiations continued until almost the “last minute” did not constitute
coercion. It noted that sometimes last-minute negotiations help a client get the best
offer possible, even if the process is nerve-wracking.

¶18 In finding that Mirza did in fact understand the plea, the circuit court
explained that, under the circumstances, Mirza’s allegation that he did not
understand the plea was simply not credible. The court explained that Mirza knew
the elements of the offenses, not just because of the plea colloquy, but because of
all the work he put in to assist his defense. Indeed, Mirza knew “the case better than
anyone involved. Because, one, he lived the facts of it, and, two, he was very
invested in looking at the case.” The court further reasoned that while pleading was
a difficult, personal decision to make, this particular plea was not complicated.

¶19 Later, following the United States Supreme Court’s issuing
Counterman v. Colorado, 600 U.S. 66 (2023), Mirza filed a second motion to
withdraw his plea, claiming that Counterman rendered his conviction
unconstitutional. The circuit court held another hearing and denied the motion.
Mirza now appeals.

¶20 On appeal, Mirza argues that the circuit court erred in not permitting
him to withdraw his plea before sentencing. He also argues that the Counterman
decision renders his plea invalid.

¶21 While circuit courts “should freely allow a defendant to withdraw his
plea prior to sentencing for any fair and just reason, unless the prosecution will be
substantially prejudiced[,]” see State v. Jenkins, 2007 WI 96, ¶28, 303 Wis. 2d 157,

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No. 2024AP176-CR

736 N.W.2d 24 (citations omitted), “the decision to grant or deny ‘the motion to
withdraw the plea rests within the sound discretion of the circuit court[,]’” id., ¶29
(citation omitted). In other words, we review a circuit court’s “decision to grant or
deny a motion to withdraw a plea before sentencing … under the erroneous exercise
of discretion standard.” See id., ¶30. “All that ‘this court need find to sustain a
discretionary act is that the circuit court examined the relevant facts, applied a
proper standard of law, and, using a demonstrated rational process, reached a
conclusion that a reasonable judge could reach.’” Id. (citation omitted). Only
“[w]hen there are no issues of fact or credibility in play” does “the question whether
the defendant has offered a fair and just reason become[] a question of law that we
review de novo.” Id., ¶34. Put another way, whether a type of claim constitutes a
fair and just reason is a question of law, while whether the reason given by a
particular defendant actually exists is a question of fact we will not disturb unless
the circuit court’s findings were erroneous. See id., ¶¶33-34.

¶22 In Mirza’s case, the circuit court did not erroneously exercise its
discretion in determining that Mirza did not present a fair and just reason to
withdraw his plea. The court held a hearing at which Mirza and trial counsel both
testified, and, in the well-reasoned oral ruling detailed above, explained why the
facts did not support Mirza’s claims that he was coerced and did not understand his
plea. Because the circuit court examined the facts, applied the proper standard of
law, and rationally reached a conclusion that a reasonable factfinder could reach,
we will not disturb its findings. See id., ¶¶30, 33-34.

¶23 Moreover, we decline to address the arguments Mirza raises for the
first time on appeal. See State v. Hayes, 2004 WI 80, ¶21, 273 Wis. 2d 1, 681
N.W.2d 203. In his brief, Mirza does not argue that his plea was coerced or that he
did not understand his plea; rather, he “concede[s] the facts as the circuit court found

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No. 2024AP176-CR

them” and instead argues that he should be allowed to withdraw his plea because he
“had serious reservations about his attorney’s ability and willingness to take the case
to trial[.]” He further argues, without citation to the Record, that trial counsel
“demonstrably got the most important evidence wrong.”3 These arguments are not
only unpersuasive in their own right, but they also were not made before the circuit
court; therefore, we will not consider them here. See id.

¶24 In addition, we conclude that the Counterman decision does not
invalidate Mirza’s plea. In Counterman, the defendant was convicted of stalking
under a Colorado state statute after he sent hundreds of Facebook messages—
including some that were “true threats”—to a local musician he had never met.
Counterman, 600 U.S. at 70 (reciting background facts), 72 (defining and
discussing the nature of “true threats”). The stalking statute under which
Counterman was convicted did not require any mens rea. See id. at 72-73. Rather,
the statute simply prohibited “[r]epeatedly ... mak[ing] any form of communication
with another person in a manner that would cause a reasonable person to suffer
serious emotional distress and does cause that person ... to suffer serious emotional
distress[.]” See id. at 70 (first alteration in original; citation and subquotation marks
omitted). So as not to chill protected speech, the Supreme Court held that to impose
sanctions in a “true-threats” case, the State must additionally prove the defendant
acted recklessly. Id. at 78-82. In other words, if liability is imposed due to the

3
Though he does not specify exactly which evidence his trial attorney “got … wrong[,]”
given the context of his argument, we assume Mirza is referring to a phone call between him and
his then brother-in-law. As noted, the Record shows that the circuit court denied Mirza’s motion
to suppress the phone call. The Record also shows that, during one motion hearing, the district
attorney told the court that it believed the court had ruled the entire call admissible. Unfortunately,
any further ruling about the phone call beyond what was already discussed is not in the Record.
Ostensibly because there was no explicit ruling admitting the entire call, Osman argues that trial
counsel was wrong to infer that the call would pose a problem at trial. We disagree. Trial counsel
consulted with numerous attorneys before concluding that the call was a problem, and, as far as the
Record shows, damaging portions of it had the potential to be admitted at trial.

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No. 2024AP176-CR

content of the defendant’s speech, the State must prove that “a speaker is aware ‘that
others could regard his statements as’ threatening violence and ‘delivers them
anyway.’” See id. at 79 (citation omitted).

¶25 Mirza, focusing on the fact that the State intended to play his abusive
phone call to Sally’s brother at trial, argues that his conviction is invalid following
Counterman. Given the nature of the phone call, Mirza argues it was a “true threat.”
Turning to the stalking statute under which he was convicted, WIS. STAT.
§ 940.32(2),4 he further argues that because it requires only negligence, rather than
the higher standard of recklessness now imposed by Counterman in “true threats”
cases, the statute is no longer constitutional.

¶26 We disagree. Simply put, this is not a “true threats” case. Mirza
overlooks the vast number of harassing and intimidating non-speech acts that
formed the basis for his plea, including: driving by Sally’s house, peering in her

4
WIS. STAT. § 940.32(2) provides: Whoever meets all of the following criteria is guilty of
a Class I felony:

(a) The actor intentionally engages in a course of conduct
directed at a specific person that would cause a reasonable person
under the same circumstances to suffer serious emotional distress
or to fear bodily injury to or the death of himself or herself or a
member of his or her family or household.

(b) The actor knows or should know that at least one of the
acts that constitute the course of conduct will cause the specific
person to suffer serious emotional distress or place the specific
person in reasonable fear of bodily injury to or the death of himself
or herself or a member of his or her family or household.

(c) The actor’s acts cause the specific person to suffer serious
emotional distress or induce fear in the specific person of bodily
injury to or the death of himself or herself or a member of his or
her family or household.

(Emphasis added.)

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No. 2024AP176-CR

windows late at night, entering her house uninvited (both when she was home and
also breaking in when she was not home), and leaving explicit pictures of her on her
son’s phone—not to mention the physical and sexual violence he committed against
her. The phone recording, damaging as it was, was not the sole basis for the stalking
charge, but rather comprised one part of Mirza’s ongoing course of conduct. While
the call may have bolstered the victim’s credibility and countered Mirza’s defense
claiming Sally was lying and/or misconstruing his actions, that call was but one
piece of evidence. Because the plea hinged on Mirza’s course of conduct, not the
contents of the call, there is no First Amendment issue. Mirza’s case is not a “true
threats case,” and, consequently, Counterman does not invalidate his plea.

By the Court.—Judgment affirmed.

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

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