COURT OF APPEALS

DECISION

DATED AND FILED

June 8, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2021AP1865-CR Cir. Ct. No. 2020CF60

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

KIMBERLY A. HOWELL,

 DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for 

Manitowoc County: MARK R. ROHRER, Judge. Affirmed.

¶1 NEUBAUER, J.1 Kimberly A. Howell appeals from a judgment of 

conviction and an order denying her postconviction motion. Howell contends that 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(f) (2019-20). 

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
No. 2021AP1865-CR

2

the circuit court erroneously exercised its discretion at sentencing by imposing a 

condition that, during the term of her probation, she may not be a guardian of any 

child. She also contends the condition is unconstitutional and unreasonable. 

Howell argues that the court erred by denying her motion to stay pending appeal 

and her postconviction motion, both of which sought to modify the condition. We 

reject these challenges and affirm.

BACKGROUND

¶2 On January 22, 2020, Howell was charged with three counts of 

causing mental harm to a child in violation of WIS. STAT. § 948.04(1) and two 

counts of physical abuse of a child, intentional causation of bodily harm, in 

violation of WIS. STAT. § 948.03(2)(a)-(b). 

¶3 Howell was the guardian of five children, ages one to eleven. One 

of the children is Howell’s grandson, J.R., who is autistic. 

¶4 The Manitowoc County Department of Human Services (County) 

received an anonymous tip that “Child A,” subsequently referred to as S.G., who 

was eleven years old, was being neglected by her guardians, Howell and her 

husband.2 S.G. is not one of Howell’s biological grandchildren. 

¶5 The criminal complaint details the facts supporting the charges,

which are based on an investigation involving interviews of Howell and three of 

the children, including S.G., by a detective and a child protection services social 

worker. The allegations of mistreatment made by S.G., which will be discussed 

 

2

 Howell’s husband is not the subject of this criminal case.
No. 2021AP1865-CR

3

further below, were extensive and consistent in several respects with the 

interviews with the two other children. Howell denied that S.G. was being abused. 

After she was charged, the five children were removed from her home. 

¶6 Howell was subsequently charged in a separate case with bail 

jumping arising out of an incident where she drove by two of the children at 

school and shouted at them. Witnesses to the event reported that the children were 

frightened and went back into the school. 

¶7 Pursuant to a plea agreement, the charges were modified with an 

amended information, and Howell pled no contest to two counts of child neglect in 

violation of WIS. STAT. § 948.21(2)3and one count of disorderly conduct,

domestic abuse, in violation of WIS. STAT. §§ 947.01(1), 939.51(3)(b), and 

968.075(1)(a). One count of causing mental harm to a child in violation of WIS.

STAT. § 948.04(1) and one count of physical abuse of a child in violation of WIS.

STAT. § 948.03(2)(b) were dismissed and read in at sentencing. The bail jumping 

charges were also dismissed and read in for purposes of sentencing. The State 

agreed to recommend a withheld sentence and two years of probation. The State 

recommended as conditions of probation that Howell receive a mental health 

assessment, take parenting classes, and have no contact with S.G. 

¶8 At the plea hearing, Howell’s counsel noted that Howell disagreed 

with some of the facts in the complaint but agreed that there were sufficient facts 

 

3

 The court confirmed with Howell that she understood the elements of the neglect 

crimes to which she pled, including that the State would have to show beyond a reasonable doubt 

that, as a person responsible for the welfare of the child, she negligently failed to provide 

necessary care so as to seriously endanger the physical, mental, or emotional health of S.G. 
No. 2021AP1865-CR

4

in the complaint that were substantially true and correct to establish a factual basis 

for Howell’s plea. 

¶9 At sentencing, Howell read a statement emphasizing how much she 

loved and cared for the children and recounting S.G.’s mental health and 

behavioral issues. During the plea colloquy, Howell had acknowledged receiving 

treatment for mental illness herself. She stated that she had become “stressed out” 

and did not know how to “deal” with S.G.’s behavior while also being responsible 

for four other children. Howell also said she had “lots of problems,” including 

serious physical ailments. She acknowledged that she should have, but did not, 

seek “more help from the outside.” She also said she should have come up with 

“better ways to discipline” S.G. and that she regretted some of the decisions she 

has made. However, she also stated that the allegations were “terribly ... 

exaggerated,” that the children were asked leading questions in the interviews, and 

she claimed the reporting of the interviews in the complaint was not accurate. 

Howell’s counsel stated that Howell had given up the guardianship of the four 

children, but not that of her autistic grandson, J.R. 

¶10 In a thorough sentencing decision, the circuit court considered the 

gravity of the offenses, Howell’s character, and the need to protect the public. The 

court noted that S.G. had special needs and significant mental health and 

behavioral challenges, which Howell and her counsel detailed prior to sentencing. 

Nevertheless, the court found that Howell “involved herself in criminal activity” 

rather than seeking help. 

¶11 The court acknowledged Howell’s contention that the children’s

allegations were exaggerated but found multiple “consistent themes” between 

S.G.’s allegations and the accounts of the other two children who were 
No. 2021AP1865-CR

5

interviewed separately, which lent them credibility. For example, the court found 

credible the claims that Howell instructed the other children to strike S.G. One 

child reported that Howell sometimes “tell[s] us to hit [S.G.] in the stomach.” 

This child reported that S.G. was hit, slapped, and punched. The other child 

reported that Howell beat S.G. and would tell the other children to beat S.G. The 

child “always listened” to Howell when she told him to beat S.G. 

¶12 The court also identified consistency in the allegations that S.G. 

“was required to stand up for extended periods of time to the point where her legs”

were about to give out but she was so frightened of being struck by Howell that 

she did not complain. S.G. reported that Howell required S.G. to do an extensive 

number of push-ups as a form of discipline. The other children confirmed that 

Howell required S.G. to do push-ups. Howell acknowledged that she disciplined 

S.G. by making her do push-ups until she “tells the truth.” The court identified as 

problematic Howell’s attempt to justify her treatment of S.G. as an effort to have 

her exercise. 

¶13 The court recounted the allegations that Howell disciplined S.G. 

with a “rice diet”—limiting S.G. to two cups of rice three times a day. S.G. 

reported that she was “often hungry.” The other children confirmed the “rice diet” 

and reported that S.G. was disciplined when she “stole” food. One child stated he 

believed S.G. stole food because she was hungry. 

¶14 The court also noted that S.G., who was eleven years old, wore pullups at night and that when she had accidents, Howell would make her stay in 

“soiled pants.” S.G., the other two children, and Howell confirmed that S.G. did 

not have a bed. S.G. reported that she sometimes was required to sleep on the cold 

bathroom floor, which one of the other children confirmed. 
No. 2021AP1865-CR

6

¶15 The court found the interviews set forth an “accurate pattern of a 

picture of what’s going on”—that Howell had directed her “anger and frustration” 

at S.G., who “became a target of the abuse.” After recounting the degrading 

treatment to which Howell had subjected S.G., the court stated that “no child 

should ever endure this type of behavior.” The court noted that S.G. had lived 

through a “pretty hellacious situation” for an entire year. This time frame was also 

significant, given Howell’s acknowledgement of the difficult behavioral issues she 

identified, because Howell undertook these measures rather than seeking help. 

¶16 The court also highlighted two incidents in which Howell had not 

been honest with investigators when she denied allegations about her treatment of 

S.G. One incident involved cutting off S.G.’s ponytail as discipline, with which 

Howell initially denied any involvement. In the second incident, Howell

“terrorized” two of her grandchildren after she relinquished custody by driving by 

their school and shouting at them. While Howell had downplayed her behavior to 

the police by denying any shouting and stating that the drive-by was an accident, 

the incident was witnessed by others. This factored into the court’s effort to 

determine whether the children’s allegations were exaggerated or Howell’s denials

were credible: in the court’s view, “the credibility pendulum is starting to swing 

more and more and more towards the children, not in favor of Ms. Howell.” 

¶17 The circuit court also noted the positive aspects of Howell’s 

character, crediting her for taking on the care of the five children, four of whom 

were grandchildren, likely without adequate financial resources. The court noted 

Howell’s positive undertakings since the criminal complaint was filed, such as 

taking anger management and parenting classes. 
No. 2021AP1865-CR

7

¶18 Ultimately, the circuit court found that, regardless of her stated love, 

Howell engaged in “intolerable and unacceptable” behavior towards S.G. The 

court also concluded that it was “troubling” that Howell “hasn’t been willing to ... 

come to grips with how far she took it and allowed it to go on.” 

¶19 The circuit court imposed and stayed jail sentences on the three 

charges and placed Howell on probation for two years. The court also ordered, as 

a condition of probation, that Howell not serve as a guardian for any child during 

the term of her probation. The court explained that Howell had struggled with a 

child with special needs and engaged in criminal behavior. The court recognized 

the difficult situation presented with J.R., a child with autism, along with Howell’s 

own health problems, which were difficult to handle. The court found that, given 

what happened to the children under her care, protecting children supported this 

condition. 

¶20 On March 15, 2021, Howell filed a motion with the circuit court to 

stay the condition that she not be allowed to serve as guardian to any child during 

the term of her probation. Howell argued that the condition was improper because 

it would preclude her from opposing efforts by the County to terminate her 

guardianship of J.R. in a then-pending child in need of protection or services 

(CHIPS) proceeding. 

¶21 The court held a hearing on Howell’s motion on March 18, 2021. 

After hearing argument from the parties, the court explained that its sentencing 

decision could not be influenced by what “may occur as a result” of the sentence. 

The court also noted the broad discretion it had in setting terms of probation, 

which was to be used to “further the objective of rehabilitation and protect society 

and potential victims from future wrong doing.” The court ruled that the 
No. 2021AP1865-CR

8

guardianship condition was “reasonably related” to Howell’s rehabilitation. The 

court reviewed the facts in the complaint upon which Howell’s plea was based, 

which chronicled her mistreatment of S.G., and noted that J.R.’s autism was “not 

something very easy to manage, [individuals with autism] can become very 

difficult.” The court also referred to Howell’s own physical ailments and 

expressed sensitivity to not “set[ting] her up for potential failure by putting her in 

a situation where she has a difficult child that she’s having to deal with—like she 

did with this other child—and here we go again.” Based on these considerations, 

the court concluded that the guardianship condition “furthers the objective of 

rehabilitation of Ms. Howell, and protects society and potential victims from 

future wrong doing.” 

¶22 On May 11, 2021, Howell filed a notice of appeal. Six days later,

Howell filed an emergency motion with this court seeking to stay her term of 

probation, or alternatively, to exempt J.R. from the condition prohibiting 

guardianship, pending appeal. As before the circuit court, Howell contended that 

the condition would provide the basis for a termination of her guardianship in the 

CHIPS proceeding. She repeated her argument that the condition violated her due 

process rights because none of the charges against Howell alleged that she had 

harmed J.R. She also pointed out that J.R. was in foster care, so the County 

controlled her contact with him. We denied the motion in an order dated June 22, 

2021. 

¶23 Howell subsequently moved to dismiss her appeal, which we 

granted, and filed a postconviction motion in the circuit court. In her motion, 

Howell argued the circuit court erred because the condition prohibiting her from 

acting as a guardian of any child was: (1) overly broad and unconstitutional; and 

(2) neither reasonable nor appropriate. The court denied the motion without a 
No. 2021AP1865-CR

9

hearing, referring back to the rationale set forth in its decision on the motion to 

stay. 

¶24 Howell appeals.

DISCUSSION

¶25 On appeal, Howell again argues the circuit court erred because the 

condition prohibiting her from acting as a guardian of any child was: (1) overly 

broad and unconstitutional; and (2) neither reasonable nor appropriate. She now 

adds that she was denied notice and an opportunity to challenge the condition.

¶26 “Sentencing is left to the discretion of the trial court, and appellate 

review is limited to determining whether there was an erroneous exercise of 

discretion.” State v. Echols, 175 Wis. 2d 653, 681, 499 N.W.2d 631 (1993). 

Wisconsin appellate courts recognize a “strong public policy against interference 

with the sentencing discretion of the trial court and sentences are afforded the 

presumption that the trial court acted reasonably.” Id. at 681-82 (citation omitted); 

State v. Ziegler, 2006 WI App 49, ¶22, 289 Wis. 2d 594, 712 N.W.2d 76 (“we 

afford a strong presumption of reasonability to the [circuit] court’s sentencing 

determination because th[at] court is best suited to consider the relevant factors 

and demeanor of the convicted defendant”).

¶27 “[T]o properly exercise its discretion, a circuit court must provide a 

rational and explainable basis for the sentence.” State v. Stenzel, 2004 WI App 

181, ¶8, 276 Wis. 2d 224, 688 N.W.2d 20. “The primary sentencing factors which

a court must consider are the gravity of the offense, the character of the defendant, 

and the need to protect the public.” Ziegler, 289 Wis. 2d 594, ¶23. “The weight 

to be given to each factor is within the discretion of the sentencing court.” Id.
No. 2021AP1865-CR

10

¶28 The circuit court has broad discretion in setting conditions of both 

extended supervision and probation. State v. Miller, 2005 WI App 114, ¶11, 283 

Wis. 2d 465, 701 N.W.2d 47; WIS. STAT. § 973.01(5) (concerning extended 

supervision conditions); State v. Brown, 174 Wis. 2d 550, 553, 497 N.W.2d 463

(Ct. App. 1993); WIS. STAT. § 973.09(1)(a) (concerning probation conditions). 

For both types of supervision, the court is permitted to impose reasonable and 

appropriate conditions intended to rehabilitate the defendant and protect the 

community. Miller, 283 Wis. 2d 465, ¶11; Brown, 174 Wis. 2d at 553-54. 

However, where a defendant challenges a condition of probation on the grounds

that it is unconstitutional, we review the challenge de novo. State v. Oakley, 2001 

WI 103, ¶8, 245 Wis. 2d 447, 629 N.W.2d 200, clarified on denial of 

reconsideration, 2001 WI 123, 248 Wis. 2d 654, 635 N.W.2d 760.

I. The probation condition is constitutional.

¶29 Howell contends that WIS. STAT. § 48.0234creates a liberty interest 

protected by the Fourteenth Amendment5in the guardianship of her grandchild

that was violated because she was not given notice or an opportunity to be heard 

before the circuit court imposed the condition. We reject this challenge. 

¶30 First, Howell fails to meaningfully develop her argument that she 

has a liberty interest in guardianship. She cites no law for the proposition that the 

Fourteenth Amendment protects one’s status as a court-appointed guardian, and 

simply citing the guardianship statute is wholly insufficient. “We do not decide 

 

4

 Howell cites WIS. STAT. § 48.23 in her brief but quotes from WIS. STAT. § 48.023. We 

assume the reference to § 48.23 was an error.

5

 U.S. CONST. amend. XIV.
No. 2021AP1865-CR

11

the validity of constitutional claims that are broadly stated but not specifically 

argued.” State v. Nienhardt, 196 Wis. 2d 161, 168, 537 N.W.2d 123 (Ct. App.

1995); see also State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App.

1992) (court of appeals need not address undeveloped arguments).6

¶31 We also reject Howell’s contention that she was entitled to notice of 

the probation condition before the court imposed it because the condition was not 

included in the parties’ plea agreement. Again, Howell fails to provide any 

authority for the notion that the circuit court was limited to the terms of the plea 

agreement, which clearly it was not. See State v. McQuay, 154 Wis. 2d 116, 128, 

452 N.W.2d 377 (1990) (“It is well established, however, that the sentencing court 

is not in any way bound by or controlled by a plea agreement between the 

defendant and the state.”). Indeed, the court confirmed with Howell at the plea 

hearing that she understood that it was not bound by the plea agreement. 

¶32 Likewise, we reject Howell’s contention that she was denied notice 

and an opportunity to be heard. Unlike with a maximum sentence or a penalty 

enhancer, there is no statutory requirement that an accused be advised of potential 

probation terms or conditions. Indeed, such a requirement would be inconsistent 

with the broad discretion accorded to circuit courts to craft conditions at 

sentencing that will further the goals of rehabilitation and protection of the 

community. Moreover, we note that Howell was able to raise her objection to the 

condition twice, in the motion to stay and the postconviction motion. The circuit 

court held a hearing on her motion to stay and thoroughly explained why her 

 

6 While both Howell and the State request publication of this decision, neither adequately 

addresses the criteria for doing so, and more importantly, neither sufficiently develops the issue 

of whether the condition infringes on a constitutional liberty interest to warrant publication.
No. 2021AP1865-CR

12

objection to the condition did not carry the day. The court then referred to its 

explanation in denying Howell’s postconviction motion. 

¶33 Even if Howell could establish a constitutional right is at issue, her 

challenge fails. A defendant has no right to probation, which “is a privilege 

extended to a [defendant] by the grace of the state.” State v. Schwind, 2019 WI 

48, ¶25, 386 Wis. 2d 526, 926 N.W.2d 742 (citation omitted). As such, probation 

conditions are not subject to strict scrutiny analysis. See Oakley, 245 Wis. 2d 447, 

¶16 n.23. Conditions of probation may infringe upon constitutional rights as long 

as they are not overly broad and are reasonably related to the defendant's 

rehabilitation. State v. Rowan, 2012 WI 60, ¶¶4, 10, 341 Wis. 2d 281, 814 

N.W.2d 854; Nienhardt, 196 Wis. 2d at 168-69.

¶34 The condition prohibiting Howell from serving as guardian during 

her time on probation is not overly broad. First, at the time of sentencing, the 

circuit court had before it multiple accounts detailing a year-long course of 

abusive and neglectful behavior towards S.G. Some of the conduct relayed in 

these accounts—which Howell agreed provided an adequate factual basis for her 

plea—is shocking. Among other things, Howell: (1) instructed the other children 

under her care to slap, hit, and punch S.G.; (2) punished S.G. by forcing her to 

stand up for extended periods of time to the point where her legs were about to 

give out, (3) deprived S.G. of food other than rice, often leaving her hungry; and 

(4) deprived her of a bed and forced her to wear soiled clothing. The circuit court 

was rightly concerned about Howell continuing to serve as a guardian over 

children given this behavior.

¶35 Second, while Howell repeatedly argues that her behavior only 

involved S.G., this contention itself evidences great indifference to the impact that 
No. 2021AP1865-CR

13

the exposure to, and involvement in, the mistreatment of S.G. undoubtedly has had 

on the other children. Moreover, S.G. was not the only child to be the target of 

Howell’s criminal behavior. Her plea agreement allowed the circuit court to 

consider a dismissed count of causing mental harm to a seven-year-old child under 

her guardianship. The circuit court’s concern that Howell might behave abusively 

or neglectfully towards other children under her care, including J.R., was not 

unfounded.

¶36 Third, Howell acknowledged having “lots of problems myself,” and 

the circuit court noted that she had taken parenting classes and steps to address 

anger management issues. Given Howell’s acknowledged unlawful behavior 

towards S.G. and at least one other child under her care and her own physical and 

mental health issues, the circuit court’s imposition of a no-guardianship condition 

was not overly broad.7

¶37 In addition, the condition bears a reasonable relationship to Howell’s 

rehabilitation in light of the conduct underlying her plea. By relieving Howell of 

the burdens of serving as a guardian during her two years on probation, the 

condition gave Howell the time and space to attend court-ordered parenting 

classes and focus on improving her own physical and mental health so that she is 

better able to conform her conduct to the law. See Oakley, 245 Wis. 2d 447, ¶21. 

II. The circuit court did not erroneously exercise its discretion in 

imposing the probation condition.

 

7

 We also note that the no-contact order imposed by the circuit court applied only to S.G. 

and thus did not prohibit all contact between Howell and J.R. or the other children over which she 

formerly served as guardian. 
No. 2021AP1865-CR

14

¶38 Finally, Howell contends that the probation condition was not 

reasonable and appropriate. See WIS. STAT. § 973.09(1)(a). Focusing specifically 

on J.R., Howell contends that the circuit court erred in imposing the prohibition 

because J.R. was not a victim of any of the offenses to which she pled no contest

and because J.R. was not in her custody at the time of sentencing. 

¶39 Our task in reviewing the reasonableness and appropriateness of the 

condition is relatively narrow; we focus on whether the condition “serve[s] the 

objectives of probation: rehabilitation and protection of the state and community 

interest.” Miller, 175 Wis. 2d at 208. And given the broad discretion afforded to 

the circuit court in sentencing, our review is limited to whether the circuit court 

erroneously exercised its discretion in imposing the condition. State v. Davis, 

2017 WI App 55, ¶12, 377 Wis. 2d 678, 901 N.W.2d 488.8

¶40 We have already explained why the condition was reasonably related 

to Howell’s rehabilitation. Howell pled no contest to child neglect and disorderly 

conduct, domestic abuse, of a child in her care pursuant to a guardianship. The 

read-in charges involved physical abuse of a child and causing mental harm. 

Howell also acknowledged struggling with her own physical and mental issues. 

Given this record, the circuit court was rightly concerned not only about giving 

Howell the best chance of rehabilitation, but also about the need to protect the 

 

8

 Citing State v. Piddington, 2001 WI 24, 241 Wis. 2d 754, 623 N.W.2d 528, Howell 

contends that we should review this issue de novo because it raises a question of statutory 

interpretation. Puzzlingly, the state agrees. But Piddington is not on point; that case examined a 

statute governing the administration of tests to determine if a driver is intoxicated. Piddington, 

241 Wis. 2d 754, ¶13. Neither party cites any case in which a Wisconsin appellate court has 

reviewed a circuit court’s decision to impose a condition on probation for the standard of review. 

State v. Davis, 2017 WI App 55, ¶12, 377 Wis. 2d 678, 901 N.W.2d 488, and others confirm that 

this issue is reviewed under the erroneous exercise of discretion standard.
No. 2021AP1865-CR

15

children from the risk of similar treatment if she was allowed to continue to serve 

as a guardian. For these reasons, it was reasonable and appropriate to preclude 

Howell from continuing in a guardianship role during probation, including for her 

autistic grandchild. The condition is not unreasonable or inappropriate and as 

such, it also reflects a proper exercise of discretion.

By the Court.—Judgment and order affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)4.