State v. Malik Darion Roberson

OFFICE OF THE CLERK
WISCONSIN COURT OF APPEALS
110 EAST MAIN STREET, SUITE 215
P.O. BOX 1688
MADISON, WISCONSIN 53701-1688
Telephone (608) 266-1880
TTY: (800) 947-3529
Facsimile (608) 267-0640
Web Site: www.wicourts.gov
DISTRICT I
September 1, 2026
To:
Hon. David A. Feiss
Reserve Judge
Anna Hodges
Clerk of Circuit Court
Milwaukee County Safety Building
Electronic Notice
John Blimling
Electronic Notice
Brian Patrick Mullins
Electronic Notice
Malik Darion Roberson 713525
Stanley Correctional Institution
100 Corrections Dr.
Stanley, WI 54768
You are hereby notified that the Court has entered the following opinion and order:
2024AP6-CRNM
2024AP7-CRNM
State of Wisconsin v. Malik Darion Roberson (L.C. # 2021CF2364)
State of Wisconsin v. Malik Darion Roberson (L.C. # 2021CF5046)
Before Donald, C.J., Colón, P.J., and Geenen, J.
Summary disposition orders 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).
Malik Darion Roberson appeals from judgments of conviction entered upon his guilty
pleas. Appellate counsel, Brian Patrick Mullins, has filed a no-merit report, pursuant to
Anders v. California, 386 U.S. 738 (1967), and WIS. STAT. RULE 809.32 (2023-24).1 Roberson
filed a short letter that we construed as a response to the no-merit report. Upon this court’s
independent review of the record as mandated by Anders, counsel’s report, and Roberson’s
1 All references to the Wisconsin Statutes are to the 2023-24 version.

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response, we conclude that there are no issues of arguable merit that could be pursued on appeal.
We therefore summarily affirm the judgments.
On June 9, 2021, Daniel, Sydney,2 and their two-month-old child drove to Roberson’s
home to pick up the one-year-old child whom Sydney and Roberson shared. When Daniel and
Sydney arrived, Sydney informed Roberson that they were waiting outside. Roberson came out,
armed with a pistol, and pointed the gun at the car. Sydney began recording with her cell phone,
screaming “My baby’s in this car.” Roberson fired two shots toward the car. One bullet lodged
in the hood of the car, but the other went through the windshield and hit Daniel in the right
shoulder. Roberson was arrested and charged on June 15, 2021, in Milwaukee County Circuit
Court Case No. 2021CF2364, with one count of first-degree reckless injury and two counts of
first-degree recklessly endangering safety, all with the dangerous weapon enhancer.
While Roberson was in jail for those pending charges, he made several outgoing calls to
Sydney, trying to convince her to not show up to court and to call the district attorney’s office
and tell them she did not want to proceed. As a result, he was charged on December 9, 2021, in
Milwaukee County Circuit Court Case No. 2021CF5046, with felony intimidation of a witness,
felony intimidation of a victim, and six counts of misdemeanor bail jumping.3 The circuit court
joined the cases on the State’s motion.
2 These matters involve crime victims. For ease of reading and pursuant to the policy underlying
WIS. STAT. RULE 809.86(4), we use pseudonyms instead of the victims’ names.
3 At the time, Roberson had no-contact orders prohibiting contact with Sydney in three other
pending cases in Milwaukee.

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Roberson waived a jury trial, and a court trial began. Daniel was called to testify first.
The circuit court allowed a break during that testimony so that Roberson’s attorney could appear
in a different courtroom. When the parties reconvened, Roberson wanted to resolve his case
through a plea agreement. In exchange for his guilty pleas to the three counts as charged in case
No. 2021CF2364 and to the intimidation of a witness charge in case No. 2021CF5046, the State
agreed to dismiss and read in the remaining counts in the second case, as well as the charges in
two pending misdemeanor cases.4 The State also agreed to limit its sentence recommendation to
a global total of twenty years of initial confinement and ten years of extended supervision. The
circuit court accepted the pleas and imposed concurrent and consecutive sentences totaling
fifteen years of initial confinement and ten years of extended supervision.5
The first issue discussed in the no-merit report is whether Roberson’s pleas were
knowing, intelligent, and voluntary. Our review of the record—including the plea
questionnaire/waiver of rights forms and addenda, along with the relevant jury instructions
included with the forms—confirms that the circuit court complied with its obligations for taking
guilty pleas, pursuant to WIS. STAT. § 971.08, State v. Bangert, 131 Wis. 2d 246, 261-62, 389
N.W.2d 12 (1986), and State v. Brown, 2006 WI 100, ¶35, 293 Wis. 2d 594, 716 N.W.2d 906.
We agree with counsel’s analysis and conclusion that any challenge to the validity of Roberson’s
plea would lack arguable merit.
4 Two additional misdemeanor cases were dismissed when Sydney did not appear for trial.
5 The circuit court imposed eight years’ initial confinement and four years’ extended supervision
for the reckless injury; four years’ initial confinement and four years’ extended supervision on each
endangering safety count, concurrent to each other and consecutive to the injury sentence; and three
years’ initial confinement and two years’ extended supervision for the intimidation, consecutive to the
other sentences.

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The no-merit report next addresses whether there is any arguably meritorious basis for
challenging the circuit court’s sentencing discretion. See State v. Gallion, 2004 WI 42, ¶17, 270
Wis. 2d 535, 678 N.W.2d 197. Our review of the record confirms that the court appropriately
considered relevant sentencing objectives and factors. See id., ¶41; see also State v. Odom, 2006
WI App 145, ¶7, 294 Wis. 2d 844, 720 N.W.2d 695; State v. Ziegler, 2006 WI App 49, ¶23, 289
Wis. 2d 594, 712 N.W.2d 76. The thirteen-year sentence imposed is well within the thirty-one-
year range authorized by law, see State v. Scaccio, 2000 WI App 265, ¶18, 240 Wis. 2d 95, 622
N.W.2d 449, and is not so excessive so as to shock the public’s sentiment, see Ocanas v. State,
70 Wis. 2d 179, 185, 233 N.W.2d 457 (1975). There is no arguable merit to challenging the
court’s sentencing discretion.
In his response, Roberson suggests he has grounds for seeking sentence modification. He
says that the circuit court made him eligible for the challenge incarceration and substance abuse
programs after twelve years and that his lawyer “guaranteed” the programs, but the Department
of Corrections (DOC) has “denied [him] for” the programs. Roberson further asserts that if the
circuit court knew the DOC would deny his participation, the court would have imposed
sentences totaling twelve years of initial confinement.
As part of its exercise of sentencing discretion, the circuit court must declare the offender
eligible to participate in either program, both of which can result in early release from initial
confinement. See WIS. STAT. § 973.01(3g), (3m); see also WIS. STAT. §§ 302.045(3m)(b),
302.05(3)(c). While the statutes list criteria necessary to determine who can participate in the
programs, the circuit court determines whether an offender should be eligible to participate in
either program. See State v. Johnson, 2007 WI App 41, ¶14, 299 Wis. 2d 785, 730 N.W.2d 661.

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In case No. 2021CF2364, the circuit court noted that count one, the reckless injury, is a
violation of WIS. STAT. ch. 940, which means Roberson is statutorily excluded from program
eligibility. See WIS. STAT. §§ 302.045(2)(c), 302.05(3)(a)1. The circuit court further declined to
make him eligible for programming on counts two and three “based upon the seriousness of the
offenses[.]” The court did, however, make Roberson “eligible for the Challenge Incarceration
Program and the Substance Abuse Program on 21CF5046.”6
The circuit court’s declaration of eligibility for the second case was erroneous as a matter
of law; felony intimidation of a witness is also a WIS. STAT. ch. 940 violation, meaning Roberson
is statutorily ineligible for either program. However, we are unpersuaded that there is any
arguable merit to a sentencing challenge based on Roberson’s statutory ineligibility for the
challenge incarceration and substance abuse programs.
First, there is no indication that the circuit court’s sentencing decision was premised in
any way on an expectation that Roberson would participate in the programming. Second, the
DOC itself, not the circuit court, controls whether and when an inmate is placed in either
program. See State v. Schladweiler, 2009 WI App 177, ¶10, 322 Wis. 2d 642, 777 N.W.2d 114,
abrogated on other grounds by State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 828.
Thus, even individuals who are both statutorily eligible and made eligible by the sentencing
court are not guaranteed participation in either program. Finally, a declaration of ineligibility by
6 The court did not specifically make Roberson eligible after serving twelve years as Roberson
suggests in his response, although that would have been the practical effect of the court’s sentencing
structure but for Roberson’s statutory ineligibility.

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the DOC generally does not constitute a new factor warranting sentence modification. See
Schladweiler, 322 Wis. 2d 642, ¶15.
Our independent review of the record reveals no other potential issues of arguable merit.
Upon the foregoing, therefore,
IT IS ORDERED that the judgments are summarily affirmed. See WIS. STAT.
RULE 809.21.
IT IS FURTHER ORDERED that Attorney Brian Patrick Mullins is relieved of further
representation of Roberson in this matter. See WIS. STAT. RULE 809.32(3).
IT IS FURTHER ORDERED that this summary disposition order will not be published.
Samuel A. Christensen
Clerk of Court of Appeals