State v. Brown, 2021AP878-CR

• Court: Court of Appeals of Wisconsin
• Writing for the Court: PER CURIAM.
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Jeramy Gene Brown, Defendant-Appellant.
• Docket Number: 2021AP878-CR
• Decision Date: 18 October 2022

State of Wisconsin, Plaintiff-Respondent,
v.
Jeramy Gene Brown, Defendant-Appellant.

No. 2021AP878-CR

Court of Appeals of Wisconsin, District III

October 18, 2022

This opinion will not be published.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

APPEAL from a judgment and an order of the circuit court for Douglas County: No. 2018CF486 KELLY J. THIMM, Judge. 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).

PER CURIAM.

¶1 Jeramy Gene Brown appeals from a judgment, entered upon his no-contest pleas, convicting him of one count of operating a

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motor vehicle while intoxicated (OWI), causing injury, as a third offense, and one count of injury by intoxicated use of a motor vehicle. Brown also appeals from an order denying his motion for postconviction relief seeking to withdraw his pleas. Brown argues that his trial counsel provided him with constitutionally ineffective assistance based on his plea to a Wis.Stat. ch. 940 (2019-20)^[1] offense, which rendered him ineligible for earned release through the Wisconsin Substance Abuse Program (SAP). For the reasons that follow, we conclude that Brown has not met his burden to prove that his trial counsel was constitutionally ineffective, and, accordingly, he is not entitled to plea withdrawal on that basis.

BACKGROUND

¶2 Brown was charged in a six-count^[2] Information after a vehicle collision resulting in serious injuries. The criminal complaint alleged that Brown ingested alcohol and then drove to a local restaurant "to pick up pizza." While en route to the restaurant, Brown ran a stop sign and crashed into another vehicle carrying a family of four, causing the family's car to flip and "land[] upside down in the ditch." All four family members sustained injuries, including seatbelt lacerations, broken bones, brain bleeds, and a collapsed lung.

¶3 While investigating the crash, officers gathered information leading them to believe that alcohol was likely a factor in the accident. One of the first responders providing medical assistance to Brown "asked Brown if he 'had any

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booze on board,'" and Brown responded, "Yea." When asked how much he had to drink, Brown's response was "73 beers." He denied using drugs. Officers also observed an unopened beer can near the vehicle, which first responders stated had been in the vehicle, and "a glass cup with a beer brand label on it in the center console area" that "had a yellow liquid in it which smelled like orange juice."

¶4 Brown was subsequently transported to the hospital for treatment of his injuries. While at the hospital, an officer provided Brown with Miranda^[3]warnings and read Brown the Informing the Accused Form. The officer again asked Brown about his alcohol consumption. Brown stated that he had "'[a] few screwdrivers' (vodka & orange juice)." When the officer asked Brown how much he had to drink, he responded, "Probably too much." Brown consented to a blood draw, which revealed a blood alcohol concentration (BAC) of .210.

¶5 Brown pled no contest to two of the six counts charged in the Information: OWI, causing injury, as a third offense, in violation of Wis.Stat. § 346.63(2)(a)1. (Count 1); and injury by intoxicated use of a vehicle in violation of Wis.Stat. § 940.25(1) (Count 3). The remaining four counts were dismissed outright. The circuit court ordered a presentence investigation report (PSI), which was filed with the court prior to sentencing.

¶6 At sentencing, Brown's struggles with alcohol abuse were highlighted by both the State and his trial counsel. The State explained that "alcohol has been a factor" throughout Brown's criminal history. Despite this history, Brown "made no efforts to receive treatment [for substance abuse] in the

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community since the offense"; thus, the State argued that "it is absolutely imperative that a confinement setting is necessary" for Brown to receive treatment. The State recommended a prison sentence in conjunction with a significant period of extended supervision. Brown's trial counsel acknowledged that Brown has "an alcohol problem," but counsel highlighted the mitigating factors in Brown's favor and argued that probation was appropriate under the circumstances.

¶7 After reviewing the appropriate factors under State v. Gallion, 2004 WI 42, ¶¶39-44, 270 Wis.2d 535, 678 N.W.2d 197, the circuit court determined that a prison sentence was necessary. The court explained that Brown had not "learn[ed] from his mistakes," and "confinement is necessary" so Brown can receive the treatment he needs. On Count 1, the court sentenced Brown to five years, comprised of two years' initial confinement followed by three years' extended supervision. On Count 3, the court imposed a consecutive nine-year sentence, consisting of four years' initial confinement followed by five years' extended supervision.

¶8 The circuit court then inquired about Brown's eligibility for SAP.^[4] The State noted that Brown was eligible on Count 1 but not on Count 3 because that conviction "is a [Wis. Stat. ch.] 940 offense." Brown's trial counsel agreed but with qualifications, stating, "I'd have to check the statute again. That sounds right, but I would hesitate to say yes, because I haven't looked at it in a while."

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After consulting the statute, counsel agreed that Brown was not eligible for SAP on Count 3. The court also questioned the PSI author, who concurred.^[5] The PSI author did, however, inform the court that because the sentences are to run consecutively, "if [Brown] were to serve [Count 3] first and then serve Count 1 second, he would be eligible [for SAP] on [Count 1]." In response, the court ordered that Brown serve Count 3 before serving Count 1 to have the "potential opportunity to get" SAP while serving the Count 1 sentence.

¶9 Brown filed a postconviction motion seeking plea withdrawal based on ineffective assistance of counsel. Brown argued that his trial counsel "misinformed" him that he was eligible for SAP on Count 3 or, in the alternative, that counsel was ineffective by failing to advise him that he was ineligible for SAP on that count. Brown alleged that had he been advised "that his pleas would render him ineligible for earned release via the SAP, he would not have entered his pleas."

¶10 The circuit court held a Machner^[6] hearing on the motion. Brown's trial counsel testified that he could not recall whether he discussed SAP with Brown, and there were no notes in the file regarding SAP discussions. According to counsel, it was his practice to discuss SAP with defendants if "prison was a certainty." Counsel testified, however, that he did not believe that prison was a certainty in this case:

[I]f I recall correctly, this was not a case that I anticipated or at least would have advised him like, yes, absolutely,

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you are going to receive prison in this case. This struck me more as a case that at least there was a very strong probability that he would not be receiving prison.

¶11 Brown also testified at the Machner hearing. According to Brown, he was aware of SAP prior to entering his pleas based on discussions with a friend, who told him, "Make sure you get [SAP]." Brown explained that he "had no idea what that was at the time," but he testified that he did not ask his trial counsel about "programming" until after he entered his pleas. Brown stated that his counsel's response on "programming" was "vague," noting that he "should be eligible" "if [he] actually would go to prison" but it was "[u]p to the Judge." Brown testified that he did not know Count 3 was ineligible for SAP and that if he had known that he was ineligible prior to entering his pleas, he "wouldn't have pled" to that count.

¶12 The circuit court concluded the hearing and allowed the parties to file post-hearing briefs. In Brown's brief, he raised, for the first time, a third ineffective assistance of counsel claim: that once it became clear prior to sentencing that Brown was not eligible for SAP on Count 3, trial counsel had a duty to inform Brown that he could withdraw his pleas under the less exacting "fair and just reason" standard for plea withdrawal.^[7]

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¶13 The circuit court subsequently issued its oral decision denying Brown's motion on all three ineffective assistance of counsel claims. First, the court stated that it found Brown's trial counsel's testimony credible and that it found Brown's testimony incredible. While the court acknowledged that trial counsel could not remember whether he discussed SAP with Brown, it stated that counsel "knows what the standard is" for SAP eligibility; therefore, the court found that counsel gave Brown "no information" on SAP rather than "wrong information," as Brown alleged. Second, the court concluded that SAP is "clearly a collateral consequence"^[8] of a plea, as even where a statute does not preclude eligibility, courts and the DOC exercise discretion over eligibility for and administration of SAP. See Wis. Stat. §§ 302.05(3)(a), 973.01(3g). Accordingly, trial counsel was not ineffective because he was not required to inform Brown as to his program eligibility.

¶14 Finally, the circuit court concluded that Brown's trial counsel was not ineffective by failing to inform Brown that he could have withdrawn his pleas prior to his sentences being imposed. According to the court, Brown "didn't

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know, at that point, whether [the court] was going to sentence him to prison or probation." Accordingly, the court was not "satisfied that that was an issue that would have allowed him to withdraw his plea under the fair and just standard." The court did not address...