COURT OF APPEALS

DECISION

DATED AND FILED

June 29, 2021

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. 2020AP266-CR Cir. Ct. No. 2018CF3239

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL JAMES BREHM,

DEFENDANT-APPELLANT.

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

Milwaukee County: DAVID A. HANSHER, Judge. Affirmed. 

Before Brash, P.J., Donald and White, JJ.

¶1 DONALD, J. Michael James Brehm appeals a judgment entered 

after a guilty plea to one count of possession of a firearm by a felon and an order 

denying postconviction relief. Brehm contends that he was improperly sentenced 

to three years of initial confinement for being a felon in possession pursuant to 
No. 2020AP266-CR

2

WIS. STAT. § 941.29(4m)(a) (2017-18).

1

 Brehm also contends that he is entitled to 

an evidentiary hearing to determine whether trial counsel was ineffective for:

(1) failing to request a presentence investigation report (PSI); (2) failing to offer

evidence of Brehm’s alleged “non-possession” of the firearm; and (3) failing to 

advise Brehm “not to make statements to his detriment.” We reject each of 

Brehm’s arguments and affirm. 

BACKGROUND

¶2 According to the criminal complaint, on July 7, 2018, one of 

Brehm’s neighbors called 911 after seeing Brehm “holding a firearm out of the 

upstairs window” and “discharging the firearm into the air.” Police found a 9mm 

Glock handgun in Brehm’s apartment and spent 9mm casings at the scene. In a 

Mirandized interview, Brehm admitted that he “shot a couple of rounds into the 

air.”

2 Brehm further explained that he “didn’t think for a couple of seconds” and 

“didn’t have any bad intentions ... I just had a dumb thought.” 

¶3 Brehm entered a guilty plea to possession of a firearm by a felon. 

This invoked the mandatory minimum penalty provision pursuant to WIS. STAT.

§ 941.29(4m)(a). Section (4m)(a) states that “[i]f a person commits a violation of 

[the felon in possession statute], the court shall impose a bifurcated sentence ... 

 

1 All subsequent references to the Wisconsin Statutes are to the 2017-18 version unless 

otherwise noted.

2

 See Miranda v. Arizona, 384 U.S. 436 (1966). 
No. 2020AP266-CR

3

and the confinement portion of the bifurcated sentence imposed on the person 

shall be not less than [three] years[.]”

3

¶4 On July 25, 2019, a sentencing hearing took place. At the beginning 

of the hearing, the defense requested that the mandatory minimum of three years 

of initial confinement be imposed but stayed for a term of probation and one year 

of conditional jail time. The circuit court denied the request. The court stated that 

“I’d like to do it, but I think the word ‘shall’ in reading the statute ties my 

hand[s].”

¶5 The circuit court sentenced Brehm to the mandatory minimum of 

three years of initial confinement followed by three years of extended supervision. 

¶6 After sentencing, Brehm filed a postconviction motion. Brehm 

argued that he was entitled to a sentence modification or a new sentencing hearing 

because the circuit court erroneously believed it had to impose the mandatory 

minimum and that WIS. STAT. § 941.29(4m)(a) was unconstitutionally overbroad. 

Brehm also argued that he was entitled to an evidentiary hearing to withdraw his 

plea based on ineffective assistance of counsel. 

¶7 The circuit court denied Brehm’s motion without a hearing. Based 

on the plain language of WIS. STAT. § 941.29(4m)(a), it concluded that “probation 

was not an option[.]” The court also rejected Brehm’s claim that the statute was 

overbroad, stating that his challenge was “unconvincing” and “underdeveloped.”

 

3

 The mandatory minimum only applies if certain conditions are met, including that a 

person was previously convicted of a “violent felony” and the person committed the current 

offense within five years after “completing his or her sentence[.]” See WIS. STAT.

§ 941.29(4m)1. & 2.a. Brehm does not contest that the required conditions were satisfied in his 

case.
No. 2020AP266-CR

4

In addition, the court found that Brehm’s ineffective assistance of counsel claims 

were “insufficiently pled” and his “conclusory allegations do not warrant an 

evidentiary hearing.” 

¶8 On appeal, Brehm renews the arguments he made in the circuit 

court. As discussed below, we reject each of his arguments. 

DISCUSSION

I. Mandatory Minimum

A. Plain Meaning of WIS. STAT. § 941.29(4m)(a)

¶9 According to Brehm, the circuit court could have imposed and 

stayed a bifurcated sentence with three years of initial confinement and placed 

Brehm on probation because WIS. STAT. § 941.29(4m)(a) is silent as to whether 

the mandatory minimum can be stayed. We disagree. 

¶10 When interpreting a statute, we start with the language of the statute. 

State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 

633, 681 N.W.2d 110. If the meaning of the words of a statute are plain, we stop 

our inquiry and apply the words chosen by the legislature. Id. “Statutory 

language is given its common, ordinary, and accepted meaning, except that 

technical or specially-defined words or phrases are given their technical or special 

definitional meaning.” Id. “Statutory interpretation presents a question of law 

that we review de novo.” State v. Stewart, 2018 WI App 41, ¶18, 383 Wis. 2d 

546, 916 N.W.2d 188.

¶11 WISCONSIN STAT. § 941.29(4m)(a) states that “[i]f a person commits 

a violation of [the felon in possession statute], the court shall impose a bifurcated 
No. 2020AP266-CR

5

sentence ... and the confinement portion of the bifurcated sentence imposed on the 

person shall be not less than [three] years[.]” (Emphasis added). 

¶12 The plain language of WIS. STAT. § 941.29(4m)(a) expressly states 

that a sentencing court “shall impose a bifurcated sentence” and the confinement 

portion “shall be not less than [three] years[.]” “The general rule is that the word 

‘shall’ is presumed mandatory when it appears in a statute.” Rotfeld v. DNR, 147 

Wis. 2d 720, 726, 434 N.W.2d 617 (Ct. App. 1988) (citation omitted). Thus, 

contrary to Brehm’s argument, imposing a bifurcated sentence with a three-year 

period of initial confinement was mandatory, not optional.

¶13 Moreover, our supreme court has rejected a similar argument in 

State v. Williams, 2014 WI 64, 355 Wis. 2d 581, 852 N.W.2d 467. In Williams, 

the court examined whether the language of an operating while intoxicated penalty 

statute, WIS. STAT. § 346.65(2)(am)6. (2009-10), required a sentencing court to 

impose a bifurcated sentence with three years of initial confinement. Id., ¶6. The 

defendant suggested that because the statute did “not explicitly prohibit probation, 

the sentencing court retains the option to order it.” Id., ¶34. The court rejected the 

defendant’s argument holding that “[i]f the statute imposes a mandatory minimum 

in prison, there would be no reason to prohibit probation. The fact that other 

unrelated statutes do explicitly prohibit probation in an abundance of caution is 

irrelevant.” Id. (footnote omitted). Likewise, here, the absence of language in 
No. 2020AP266-CR

6

WIS. STAT. § 941.29(4m)(a) specifically prohibiting a court from staying the 

sentence and ordering probation is irrelevant.4

¶14 Brehm argues that we should apply the rule of lenity when 

construing WIS. STAT. § 941.29. The rule of lenity provides generally that “when 

doubt exists as to the meaning of a criminal statute, ‘a court should ... interpret the 

statute in favor of the accused.’” State v. Guarnero, 2015 WI 72, ¶26, 363 

Wis. 2d 857, 867 N.W.2d 400 (citation omitted). However, this rule only applies 

if a “grievous ambiguity” or uncertainty exists that “would cause a court to 

‘simply guess’ as to the meaning of the statute.” Id., ¶27 (citation omitted). As 

discussed above, we do not find that § 941.29(4m)(a) is ambiguous, thus, the rule 

of lenity does not apply. See State v. Luedtke, 2015 WI 42, ¶73, 362 Wis. 2d 1, 

863 N.W.2d 592. 

B. Constitutionality of WIS. STAT. § 941.29(4m)(a)

¶15 Brehm argues that WIS. STAT. § 941.29(4m)(a) is unconstitutionally

overbroad. “A statute is overbroad when its language, given its normal meaning, 

is so sweeping that its sanctions may be applied to constitutionally protected 

conduct which the state is not permitted to regulate.” See State ex rel. Two 

Unnamed Petitioners v. Peterson, 2015 WI 85, ¶52, 363 Wis. 2d 1, 866 N.W.2d 

165 (citation omitted). Statutes are presumed constitutional, and a challenger must 

show unconstitutionality beyond a reasonable doubt. Winnebago Cnty. v. C.S., 

 

4

 Brehm points to State v. Strohbeen, 147 Wis. 2d 566, 433 N.W.2d 288 (Ct. App. 

1988), to support his argument that the circuit court had the authority to stay his sentence. 

Strohbeen, however, is factually distinctive. Strohbeen did not involve a mandatory minimum 

penalty statute, but rather whether a court had the authority to impose a sentence consecutive to a 

forfeiture commitment. Id. at 568-69.
No. 2020AP266-CR

7

2020 WI 33, ¶14, 391 Wis. 2d 35, 940 N.W.2d 875. The constitutionality of a 

statute is reviewed de novo. Id., ¶13.

¶16 We conclude that Brehm has failed to meet his burden to show that 

WIS. STAT. § 941.29(4m)(a) is overbroad. Brehm does not explain why the

language in the statute is so sweeping that it applies to constitutionally protected 

conduct which the State is not permitted to regulate. We will not develop 

arguments for parties. See Industrial Risk Insurers v. American Eng’g Testing,

Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769 N.W.2d 82. 

¶17 Further, we are not persuaded under the particular facts of this case

that the statute is unconstitutional. The complaint, which the defense stipulated to 

at the plea hearing, alleged that neighbors saw Brehm holding a firearm out of an 

upstairs window and discharging the firearm into the air. Such conduct clearly

poses public safety concerns. See State v. Roundtree, 2021 WI 1, ¶53, 395 

Wis. 2d 94, 952 N.W.2d 765 (rejecting an argument that the felon in possession 

statute was unconstitutional as applied because the statute was substantially related 

to an important government objective of public safety and the prevention of gun 

violence). Thus, Brehm has not established that WIS. STAT. § 941.29(4m)(a) is 

overbroad. See C.S., 391 Wis. 2d 35, ¶14.

C. Improper or Inaccurate Information

¶18 Brehm argues that he was sentenced based on improper or inaccurate

information because the circuit court erroneously believed it did not have the 

authority to impose and stay his sentence. 

¶19 In order to succeed on this challenge, Brehm must establish that 

there was in fact an improper or inaccurate factor. See State v. Alexander, 2015 
No. 2020AP266-CR

8

WI 6, ¶¶17-18, 360 Wis. 2d 292, 858 N.W.2d 662. As discussed above, we reject 

Brehm’s argument that the circuit court had the authority to impose and stay the 

mandatory minimum. Therefore, we do not find that Brehm was sentenced based 

on improper or inaccurate information. 

II. Ineffective Assistance of Counsel

¶20 Brehm argues that “trial counsel was ineffective, entitling [him] to 

an evidentiary hearing to withdraw his plea.” We disagree. 

¶21 A defendant seeking to withdraw his plea after sentencing must 

prove by clear and convincing evidence that plea withdrawal is necessary to 

correct a manifest injustice. State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 

50 (1996). One way to establish a manifest injustice is ineffective assistance of 

counsel. Id.

¶22 To prevail on a claim of ineffective assistance of counsel, the 

defendant must prove both that counsel’s performance was deficient and that the 

defendant was prejudiced by the deficient performance. Strickland v. 

Washington, 466 U.S. 668, 687 (1984). A reviewing court may dispose of a claim 

of ineffective assistance of counsel on either ground. Id. at 697. 

¶23 To prove deficiency, a defendant must demonstrate that counsel’s 

conduct falls below an objective standard of reasonableness. Id. at 687-88. In the 

plea withdrawal context, to establish prejudice, a defendant must show that “there 

is a reasonable probability that, but for counsel’s errors, [the defendant] would not 

have pleaded guilty and would have insisted on going to trial.” See Hill v. 

Lockhart, 474 U.S. 52, 59 (1985). 
No. 2020AP266-CR

9

¶24 A defendant is not automatically entitled to an evidentiary hearing. 

Bentley, 201 Wis. 2d at 310-11. A circuit court is required to hold an evidentiary 

hearing only if the defendant has alleged “sufficient material facts that, if true, 

would entitle the defendant to relief.” State v. Allen, 2004 WI 106, ¶14, 274 

Wis. 2d 568, 682 N.W.2d 433. Whether a defendant’s motion has alleged 

sufficient material facts entitling the defendant to relief is a question of law that 

we review de novo. Id., ¶9.

¶25 If the postconviction motion “does not raise facts sufficient to entitle 

the movant to relief, or presents only conclusory allegations, or if the record 

conclusively demonstrates that the defendant is not entitled to relief, the circuit 

court has the discretion to grant or deny a hearing.” Id. We review this decision 

under the deferential exercise of discretion standard. Id.

¶26 Here, Brehm did not adequately allege that he was prejudiced by 

trial counsel’s actions. As the circuit court observed, Brehm’s postconviction 

motion “did not even offer a bare-bones allegation about why he would not have 

pled guilty but for counsel’s purported errors—he offered no allegation at all.” 

See Lockhart, 474 U.S. at 59. Moreover, as discussed below, each of Brehm’s 

arguments are conclusory and devoid of factual support. See Bentley, 201 Wis. 2d 

at 314 (“[A] defendant should provide facts that allow the reviewing court to 

meaningfully assess his or her claim.”).

¶27 Brehm first contends that trial counsel was ineffective for failing to 

request a PSI “in a felony case where substantial prison time is involved.” Brehm

asserts that a PSI would have provided information about his “mental health, 

physical health, and type of man [he] is.” Brehm, however, does not specify what 
No. 2020AP266-CR

10

a PSI would have stated about these general topics, or more significantly, explain 

why the absence of a PSI would provide a basis for him to withdraw his plea.5

¶28 Next, Brehm argues that trial counsel should have offered evidence 

of Brehm’s alleged “non-possession” of the firearm. Brehm asserts that he “is not 

the owner of the gun that fired,” at the time he admitted to the police that he shot 

the gun he had “a dangerously high intoxication level of .71 on a Breathanalyzer 

test,”

6

and “he did not fully remember everything that happened[.]” As the circuit 

court stated, “none of this information matters” because Brehm entered a plea to 

felon in possession of a firearm and does not allege or develop any argument that 

his plea was not knowing, voluntary, or intelligent. 

¶29 Moreover, Brehm does not explain why his lack of ownership is

relevant to whether he possessed a firearm in violation of WIS. STAT. § 941.29. 

See WIS JI—CRIMINAL 1343 (2019) (stating that “[i]t is not required that a person 

own an item in order to possess it”). Similarly, Brehm does not explain, or cite 

 

5

 Brehm alleges that he “could have received a more favorable sentence.” The State 

construes this as a request for a new sentencing hearing. To the extent that Brehm is also seeking 

a new sentencing hearing, we reject his request. As stated above, Brehm does not specify what a 

PSI would have stated. Nor does Brehm explain how the information in a PSI would have been 

different from that presented at sentencing. Prior to sentencing, trial counsel submitted six letters 

on Brehm’s behalf. Those letters provided information about Brehm’s character and background, 

including his relationship with his children. In addition, during sentencing, trial counsel 

specifically discussed Brehm’s mental health and his physical health issues. Thus, Brehm has 

failed to allege sufficient facts to show that there “is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the outcome.” See 

Strickland v. Washington, 466 U.S. 668, 694 (1984). 

6

 The complaint states that “[a] preliminary breath test of [Brehm] yielded a result of 

0.71.” At sentencing, the State noted that there was “a typo” in the complaint and Brehm’s blood 

alcohol content was actually “0.071,” not “0.71.” 
No. 2020AP266-CR

11

any legal authority, as to why his intoxication or lack of memory rendered his 

statements unreliable. 

¶30 Finally, Brehm states that trial counsel should have advised him “not 

to make statements to his detriment” at sentencing. Once again, Brehm’s 

argument is conclusory and undeveloped. Brehm does not indicate what specific 

statements he is referring to or provide any explanation or argument as to why this 

entitles him to plea withdrawal. 

¶31 For the reasons stated above, we conclude that Brehm did not allege 

sufficient material facts, that if true, would have entitled him to withdraw his 

guilty plea due to ineffective assistance of counsel. Therefore, the circuit court 

acted properly when it denied Brehm’s postconviction motion without a hearing.

CONCLUSION

¶32 In sum, we reject Brehm’s argument that the circuit court

erroneously applied the mandatory minimum and that WIS. STAT. § 941.29(4m) is 

unconstitutionally overbroad. We also reject Brehm’s argument that he is entitled 

to an evidentiary hearing to withdraw his plea. Thus, we affirm.

By the Court.—Judgment and order affirmed.

Not recommended for publication in the official reports.