State v. Brott

• Docket Number: 2021AP2001-CR
• Decision Date: 30 August 2023
• Parties: State of Wisconsin, Plaintiff-Respondent, v. John R. Brott, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

1

State of Wisconsin, Plaintiff-Respondent, v. John R. Brott, Defendant-Appellant.

No. 2021AP2001-CR

Court of Appeals of Wisconsin, District II

August 30, 2023

APPEAL from a judgment of the circuit court for Waukesha County No 2019CF973 JENNIFER DOROW, Judge. Affirmed.

Before Neubauer, Grogan and Lazar, JJ.

GROGAN, J.

¶1 John R. Brott appeals from a judgment entered after he pled guilty to possession of child pornography, contrary to Wis.Stat. § 948.12(1m) (2021-22).^[1] He challenges the circuit court's decision denying his request to depart from the mandatory minimum sentence of three years in prison set forth in Wis.Stat. § 939.617(1). Brott contends that the circuit court is not bound by this statutory mandatory minimum sentence because it conflicts, he says, with what he believes is permissive sentencing language found in § 948.12(1m). He further contends that § 939.617's mandatory minimum has not been consistently applied throughout the state, thereby violating his constitutional right to equal protection.

¶2 We conclude there is no conflict between the statutes in question. Therefore, the circuit court correctly sentenced Brott in accordance with the mandatory minimum for his crime. We also conclude that Brott has failed to show an equal protection violation. Because the circuit court imposed a sentence consistent with the law, we affirm.

I. BACKGROUND

¶3 In May 2019, a tip from the National Center for Missing and Exploited Children alerted authorities that child pornography was being uploaded to an IP address determined to be associated with Brott, who was sixty-three years old at the time. When police executed a search warrant for Brott's home, they discovered dozens of images on Brott's electronic devices depicting children between the ages of ten and fifteen years old engaged in or simulating sexual acts. In speaking with police, Brott "'was adamant that any images or Internet search history regarding pornography [were] his'" and not his wife's or anyone else's.

¶4 The State charged Brott with ten counts of possession of child pornography. In exchange for Brott's guilty plea to one count, the State agreed to dismiss and read in the nine remaining counts. The circuit court accepted Brott's plea, but prior to sentencing, he moved the court to set aside Wis.Stat. § 939.617(1)'s mandatory minimum sentencing provision on the grounds that the child pornography possession statute, Wis.Stat. § 948.12(1m), says that violators "may be penalized" rather than "shall" be penalized, which he claimed created an ambiguity as to whether the circuit court retains sentencing discretion despite § 939.617's mandatory minimum sentencing requirement. Brott also argued that the rule of lenity should be employed to interpret the allegedly ambiguous sentencing provision in his favor and that inconsistent application of the sentencing provisions around the state have led to "a significant equal protection problem[.]"

¶5 The circuit court rejected Brott's arguments, determining that State v. Holcomb, 2016 WI.App. 70, 371 Wis.2d 647, 886 N.W.2d 100, was "on point and controlling." That case, the circuit court said, requires imposition of the three-year mandatory minimum initial confinement sentence set forth in Wis.Stat. § 939.617 unless-and only unless-an age-related exception (for which Brott did not qualify) applied. The circuit court further characterized § 939.617 as "not an ambiguous statute" and therefore determined that the "rule of lenity does not apply." Finally, the circuit court rejected Brott's equal protection claim. In imposing sentence, the circuit court stated:

[T]his is one of those situations where again, the legislature has curbed my discretion, has told me I must impose a bifurcated sentence with an initial term of confinement, the minimum of 3 years. But when I factor in your willingness to do treatment, when I factor what your attorney has described, right? The totality of who you are, the holistic view of who you are, I do not believe there needs to be more than 3 years of initial confinement.

I think 3 is appropriate. It is the mandatory minimum.

¶6 Brott appeals, renewing his argument that there is an irreconcilable conflict between the relevant statutes and his assertion that an inconsistent application of Wis.Stat. § 939.617 throughout the state violates his right to equal protection under the law. He contends that the circuit court "likely would have imposed a lower sentence if not for its finding that the mandatory minimum … applied to this case[,]" and he seeks a remand for resentencing with instructions to disregard § 939.617(1).^[2]

II. STANDARD OF REVIEW

¶7 This case presents a question of statutory interpretation and the application of law to undisputed facts, which we review de novo. State v. Lickes, 2020 WI.App. 59, ¶16, 394 Wis.2d 161, 949 N.W.2d 623. We interpret statutes using the well-established methodology articulated in State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis.2d 633, 681 N.W.2d 110. "[S]tatutory 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., ¶46. Our purpose "is to determine what the statute means so that it may be given its full, proper, and intended effect." Id., ¶44. We therefore "begin[] with the language of the statute[,]" and if the meaning of the text is plain, we go no further. Id., ¶45 (quoted source omitted). However, statutory history-"the previously enacted and repealed provisions of a statute"-may be "part of a plain meaning analysis." Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis.2d 541, 749 N.W.2d 581.

¶8 Where it is necessary to address the interplay between multiple statutes, as it is in this case, we must remember that "[u]nder the ordinary rules of statutory interpretation[,] statutes should be reasonably construed to avoid conflict." State v. Szulczewski, 216 Wis.2d 495, 503, 574 N.W.2d 660 (1998). "When two statutes conflict, a court is to harmonize them, scrutinizing both statutes and construing each in a manner that serves its purpose." Id. (citation omitted). Where two statutes relate to the same subject matter, the rule of statutory construction in Wisconsin "is that the specific statute controls over the general statute." Gottsacker Real Est. Co. v. DOT, 121 Wis.2d 264, 269, 359 N.W.2d 164 (Ct. App. 1984).

¶9 With respect to Brott's equal protection argument, we review equal protection challenges de novo. See State v. Clappes, 136 Wis.2d 222, 235, 401 N.W.2d 759 (1987). "When considering an equal protection challenge that does not involve a suspect classification[,] 'the fundamental determination to be made … is whether there is an arbitrary discrimination in the statute or its application, and thus whether there is a rational basis which justifies a difference in rights afforded.'" State v. Ruesch, 214 Wis.2d 548, 564, 571 N.W.2d 898 (Ct. App. 1997) (omission in original; citation omitted). Brott's burden of establishing a constitutional violation is a high one. See State v. Lindsey, 203 Wis.2d 423, 442-44, 554 N.W.2d 215 (Ct. App. 1996); Oyler v. Boles, 368 U.S. 448, 456 (1962).

III. DISCUSSION

¶10 This case involves two statutes related to possession of child pornography. The first, Wis.Stat. § 948.12, defines the crime of possession of child pornography and identifies the degree of felony resulting from its violation:

(1m) Whoever possesses, or accesses in any way with the intent to view, any … photograph … of a child engaged in sexually explicit conduct under all of the following circumstances may be penalized under sub. (3):

(a) The person knows that he or she possesses or has accessed the material.

(b) The person knows, or reasonably should know, that the material that is possessed or accessed contains depictions of sexually explicit conduct.

(c) The person knows or reasonably should know that the child depicted in the material who is engaged in sexually explicit conduct has not attained the age of 18 years.

….

(3) (a) Except as provided in par. (b), a person who violates sub. (1m) or (2m) is guilty of a Class D felony.

(b) A person who violates sub. (1m) or (2m) is guilty of a Class I felony if the person is under 18 years of age when the offense occurs.

Sec. 948.12. The second, Wis.Stat. § 939.617, mandates certain penalties for § 948.12 violations. Section 939.617 states, as relevant:

(1) Except as provided in subs. (2) and (3), if a person is convicted of a violation of s. … 948.12, the court shall impose a bifurcated sentence under s. 973.01. The term of confinement in prison portion of the bifurcated sentence shall be at least … 3 years for violations of s. 948.12.

Sec. 939.617.^[3]

¶11 Brott argues that Wis.Stat. §§ 948.12 and 939.617 are "irreconcilable" with one another because the "may be penalized" language used in § 948.12(1m) renders the "shall impose" language used in § 939.617(1) ambiguous and unenforceable. Stated differently, the crux of Brott's argument is that an irreconcilable conflict arises because, he says, § 948.12(1m) provides circuit courts with the option of imposing a bifurcated sentence for convictions for possession of child pornography because that statute uses the word "may," whereas § 939.617 requires a circuit court to impose a bifurcated sentence because it uses the word "shall." This according to Brott, ultimately "renders [§ 939.617] ambiguous" because "it is capable of being understood by reasonably well-informed persons in two or more senses" in light of § 948.12. The State disagrees. It argues that Brott has been convicted of violating § 948.12 by possessing...