2023 WI App 45

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2021AP2001-CR

Complete Title of Case: 

†Petition for Review filed

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

JOHN R. BROTT,

 DEFENDANT-APPELLANT.†

Opinion Filed: August 30, 2023

Submitted on Briefs: December 15, 2022

Oral Argument: 

JUDGES: Neubauer, Grogan and Lazar, JJ. 

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the 

briefs of Jason D. Luczak and Jorge R. Fragoso of Gimbel, Reilly, 

Guerin & Brown, L.L.P., Milwaukee. 

Respondent

ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the 

brief of Sonya K. Bice, assistant attorney general, and Joshua L. Kaul, 

attorney general. 
2023 WI App 45

COURT OF APPEALS

DECISION

DATED AND FILED

August 30, 2023

Samuel A. Christensen

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. 2021AP2001-CR Cir. Ct. No. 2019CF973

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

JOHN R. BROTT,

 DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waukesha County: 

JENNIFER DOROW, Judge. Affirmed. 

Before Neubauer, Grogan and Lazar, JJ. 

¶1 GROGAN, J. John R. Brott appeals from a judgment entered after 

he pled guilty to possession of child pornography, contrary to WIS. STAT.
No. 2021AP2001-CR

2

§ 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 

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2021AP2001-CR

3

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 
No. 2021AP2001-CR

4

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 

 

2

 Brott suggests that “rather than reading the tea leaves to divine the intent of the 

legislature,” we should instead simply “set[] aside WIS. STAT. § 939.617 regarding convictions 

under WIS. STAT. § 948.[1]2” because “the doctrine of separation of powers demands a legislative 

solution rather than a judicial one.” Brott’s suggestion is a nonstarter because statutory 

interpretation is a task that appellate courts regularly undertake. Indeed, there would be no need 

for an extensive interpretive framework such as that set forth in the well-known—and oft cited and 

applied—State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 

N.W.2d 110, if statutory interpretation did not fall within the judiciary’s ambit. We therefore 

decline Brott’s invitation to refrain from interpreting § 939.617 and reject his request to instead 

simply disregard it.
No. 2021AP2001-CR

5

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 
No. 2021AP2001-CR

6

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.
No. 2021AP2001-CR

7

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 child pornography and that the plain meaning of § 939.617 required the 

circuit court to impose a bifurcated sentence with a three-year minimum term of 

initial confinement. The State’s interpretation is correct.

¶12 As with every statutory interpretation case, we begin with the 

statutory text. Kalal, 271 Wis. 2d 633, ¶45. Because this case requires that we 

determine whether two statutes are “irreconcilable” with each other, we must begin 

by first determining the plain meaning of each. Only once we have determined what 

each statute means standing alone can we then determine whether, when read 

together, the statutes are irreconcilable or in any way ambiguous.

 

3

 WISCONSIN STAT. § 939.617 allows the circuit court limited discretion to impose a lesser 

sentence under the age-related circumstances not relevant here.
No. 2021AP2001-CR

8

¶13 We begin with WIS. STAT. § 948.12, the possession statute. As set 

forth above, § 948.12 identifies both the elements of possession of child 

pornography and the felony classifications that apply under certain conditions. 

More specifically, it states that anyone who violates § 948.12(1m) “may be 

penalized under sub. (3)[,]” which in turn identifies the age-related circumstances 

under which an offender is guilty of a Class D or Class I felony for possession of 

child pornography. Brott asserts that use of the word “may” in § 948.12(1m) means 

that a circuit court “is given the discretion to impose a bifurcated sentence[.]” Brott 

is wrong.

¶14 Although the word “may” typically “creates a presumption that the 

statute is permissive[,]” “[t]his general principle can be rebutted if construing ‘may’ 

as mandatory is necessary to reflect legislative intent.” McGuire v. McGuire, 2003 

WI App 44, ¶26, 260 Wis. 2d 815, 660 N.W.2d 308; see also Heritage Farms, Inc. 

v. Markel Ins. Co., 2012 WI 26, ¶32, 339 Wis. 2d 125, 810 N.W.2d 465. Applying 

this general principle to WIS. STAT. § 948.12, it is clear that “may” is mandatory as 

used in the possession statute because construing it otherwise would lead to 

unreasonable results and defy the clear legislative intent. This is so because 

§ 948.12 is an elements and classification statute. It defines the crime of possession 

of child pornography, sets forth the elements that comprise the crime, and identifies 

the applicable class of felony for violations. The “may” language at issue relates 

specifically to the felony classification portion of § 948.12: whoever violates the 

possession statute “may be penalized under sub. (3)[,]” which sets forth two distinct 

felony classifications—Class D (paragraph (3)(a)) or Class I “if the person is under 

18 years of age when the offense occurs” (paragraph (3)(b)). Id. The word “may” 

therefore does not mean that the circuit court has the option of whether to sentence 

a violator under subsection (3) or whether to impose a bifurcated sentence, as Brott 
No. 2021AP2001-CR

9

suggests, but rather identifies which of the two felony classifications applies to the 

violation at hand: Class D or Class I. That classification, in turn, sets forth the 

penalties for each class of felony. See WIS. STAT. § 939.50(3). 

¶15 To construe the word “may” as used in WIS. STAT. § 948.12 otherwise 

would defy logic and lead to an unreasonable result. For example, if the word “may” 

meant that a circuit court had discretion as to whether or not an offender would be 

penalized under § 948.12(3)’s felony classifications or whether an offender was 

subject to a bifurcated sentence, the court could simply determine that a convicted 

offender was guilty of a different felony classification with different maximum 

penalties or even that a convicted offender was not guilty of a felony at all. This 

would be unreasonable given that the legislature has specifically identified two—

and only two—felony classifications that apply dependent upon the offender’s age 

at the time of the offense. Sec. 948.12(3). Indeed, if a circuit court had the 

discretion Brott believes § 948.12 provides, it would have been unnecessary for the 

legislature to identify the felony classifications that apply for possession of child 

pornography at all.

¶16 The statutory history confirms that use of the word “may” relates to 

the applicable felony classification for WIS. STAT. § 948.12 violations rather than to 

the circuit court’s discretion (or lack thereof). The § 948.12 language at issue 

here—the word “may” and the corresponding felony classifications that follow—

has been in effect since June 2006 when the legislature added subsection (3) and 

revised subsection (1m). 2005 Wis. Act 433, §§ 23-25 (“Act 433”). Prior to these 

revisions, subsection (1m) stated that a person possessing child pornography “is 

guilty of a Class I felony[.]” 2005 Wis. Act 433, § 23; § 948.12(1m) (2003-04). 

Thus, Act 433 removed “is guilty of a Class I felony” and replaced it with “may be 

penalized under sub. (3)[,]” which identifies the circumstances under which a 
No. 2021AP2001-CR

10

violation is a Class D felony or a Class I felony. 2005 Wis. Act 433, §§ 23, 25. This 

amendment, which changed possession of child pornography as defined in § 948.12 

from a Class I felony for everyone to a Class D felony for everyone over eighteen 

years old, clearly shows the textual change was to increase the criminal penalty for 

some (but not all) individuals—not to provide a circuit court with newly unbridled 

sentencing discretion. 

¶17 Simply put, when the legislature eliminated the single classification 

for WIS. STAT. § 948.12 violations that previously existed in favor of the double 

classification—one for adults (Class D) and one for child offenders (Class I)—it 

needed to amend the “is guilty of a Class I felony” language that previously existed. 

See § 948.12(1m) (2003-04). It did so by adding the “may be penalized” language 

currently found in § 948.12(1m), which alerts the public that the felony 

classification for possession of child pornography subsequent to Act 433’s 

enactment will depend upon the offender’s age. The “may be penalized” language 

is therefore unambiguous as it simply addresses the new double classification, and 

it does not provide a circuit court with the discretion Brott suggests.

¶18 Having determined the plain meaning of WIS. STAT. § 948.12(1m), 

we next turn our attention to WIS. STAT. § 939.617, which is neither an elements nor 

a classification statute but rather a mandatory minimum statute. On its face, 

§ 939.617 unambiguously requires imposition of a mandatory minimum: a circuit 

court “shall impose a bifurcated sentence under s. 973.01” for violations of § 948.12 

unless specific exceptions related to the offender’s age apply. Sec. 939.617; see

Holcomb, 371 Wis. 2d 647, ¶15 (“WISCONSIN STAT. § 939.617 has a plain and 

unambiguous meaning.”). 
No. 2021AP2001-CR

11

¶19 When construing statutes, we generally “presume that the word ‘shall’ 

is mandatory[,]” Heritage Farms, Inc., 339 Wis. 2d 125, ¶32, and here, the word 

“shall” can mean only one thing: that “the circuit court is required to ... impose a 

bifurcated sentence” for violations of WIS. STAT. § 948.12 unless one of WIS. STAT.

§ 939.617’s age-related exceptions applies. See, e.g., State v. Shirikian, 2023 WI 

App 13, ¶25, 406 Wis. 2d 633, 987 N.W.2d 819. This is the only reasonable 

interpretation because if “shall” did not require a circuit court to impose a bifurcated 

sentence—which is a sentence consisting of an initial term of confinement of at least 

one year in prison followed by a term of extended supervision as set forth in WIS.

STAT. § 973.01—for such violations, there would be no need for the statute to also 

identify the limited age-related exceptions to the mandatory minimum bifurcated 

sentence requirement. 

¶20 As with WIS. STAT. § 948.12, the relevant statutory history again 

confirms this understanding of WIS. STAT. § 939.617. The legislature created 

§ 939.617 in June 2006 at the same time it amended § 948.12(1m) to include 

§ 948.12(1m)’s “may be penalized” language and the two (as opposed to the prior 

one) felony classifications. 2005 Wis. Act 433, §§ 15, 23, 25. At the time of its 

creation, § 939.617 imposed a presumptive minimum sentence. 2005 Wis. Act 433, 

§ 15. It stated: “Except as provided in subs. (2) and (3), if a person is convicted of 

a violation of ... [§] 948.12, the court shall impose a bifurcated sentence under 

s. 973.01[, and] [t]he term of confinement in prison portion of the bifurcated 

sentence shall be at least ... 3 years for violations of s. 948.12.” 2005 Wis. Act 433, 

§ 15. The referenced exceptions provided that “the court may impose a sentence 

that is less than the sentence required under sub. (1), or may place the person on 

probation, only if the court finds that the best interests of the community will be 

served and the public will not be harmed and if the court places its reasons on the 
No. 2021AP2001-CR

12

record” and that the statute did not apply at all if the offender was less than eighteen 

years old at the time of the offense. 2005 Wis. Act 433, § 15. Accordingly, when 

it enacted Act 433, the legislature granted circuit courts sentencing discretion under 

the presumptive minimum statute.

¶21 Given that the legislature added WIS. STAT. § 948.12(1m)’s “may be 

penalized” language at the same time it created WIS. STAT. § 939.617’s previous 

presumptive minimum, it would have been unnecessary for the legislature to 

provide circuit courts with sentencing discretion under § 939.617 if § 948.12’s “may 

be penalized” language already did so. This statutory history confirms that use of 

the word “may” in § 948.12 has nothing to do with circuit courts’ discretion at all. 

Moreover, when the legislature later removed the circuit courts’ sentencing 

discretion when it amended § 939.617 in April 2012 and made the three-year 

minimum mandatory in all but very specific age-related circumstances instead, see 

2011 Wis. Act 272, §§ 1m and 1p, it was already aware of § 948.12(1m)’s “may be 

penalized” language. See State v. Trongeau, 135 Wis. 2d 188, 192, 400 N.W.2d 12 

(Ct. App. 1986) (“When the legislature enacts a statute, it is presumed to act with 

full knowledge of the existing laws, including statutes.”). Thus, § 948.12(1m)’s 

“may be penalized” language—particularly when viewed in light of 2005 Wis. Act 

433—cannot be interpreted as providing circuit courts with sentencing discretion 

for § 948.12 violations in the first place. 

¶22 Having construed the two statutes at issue, we conclude neither is 

ambiguous nor irreconcilable, and we reject Brott’s attempt to merge the two 

statutes to create ambiguity. Brott’s interpretation would require sentencing courts 

to blatantly disregard the legislature’s direct instruction to impose a mandatory 

minimum sentence in all but limited age-related circumstances—an unreasonable 

result. See Kalal, 271 Wis. 2d 633, ¶46 (we interpret statutes “reasonably, to avoid 
No. 2021AP2001-CR

13

absurd or unreasonable results”). Our plain meaning interpretation results in both 

statutes working harmoniously together in setting the parameters for the punishment 

for the crime of possession of child pornography: one (WIS. STAT. § 948.12) sets 

forth the maximum allowable sentence based on the applicable felony classification, 

and the other (WIS. STAT. § 939.617) sets forth the minimum allowable sentence for 

possession of child pornography.4 Because it is possible to comply with both 

statutes, §§ 948.12 and 939.617 are not in conflict. See, e.g., State v. Grandberry, 

2018 WI 29, ¶21, 380 Wis. 2d 541, 910 N.W.2d 214 (“In order for two statutes to 

be in conflict, it must be impossible to comply with both.”). Brott’s assertion that 

§ 948.12 renders § 939.617 ambiguous therefore lacks merit.

¶23 As a final note, the cases Brott relies on do not compel a different 

result. Although Brott is correct that Holcomb does not address the precise 

argument he makes here, our statutory analysis of WIS. STAT. § 939.617 in Holcomb

is entirely consistent with our rejection of Brott’s proposed interpretation. In that 

case, Holcomb argued that we should interpret § 939.617 as allowing a circuit court 

to depart from the mandatory minimum sentence in any case in which the court 

found it in the “best interests of the community” because, he asserted, the agerelated exceptions in subsections (2) and (3) related only to placing a person on 

probation. See Holcomb, 371 Wis. 2d 647, ¶¶6-7. This court determined that the 

statutory text and structure did not support Holcomb’s interpretation. Id., ¶15. As 

we stated, § 939.617 “has a plain and unambiguous meaning[,]” which is that the 

 

4

 To the extent WIS. STAT. § 948.12 itself does not directly state that a circuit court must 

impose a bifurcated sentence, there still remains no conflict between § 948.12 and WIS. STAT.

§ 939.617 because WIS. STAT. § 973.01 requires imposition of a bifurcated sentence for felony 

convictions. 
No. 2021AP2001-CR

14

circuit court has discretion to depart from the statutory mandatory minimum 

sentence for WIS. STAT. § 948.12 violations only when the defendant meets the agerelated criteria of subsections (2) and (3).5

 Holcomb, 371 Wis. 2d 647, ¶15. 

Consequently, if those exceptions do not apply, the circuit court does not have 

discretion as to the mandatory minimum, which is the same conclusion we reach 

here. 

¶24 State v. Lalicata, 2012 WI App 138, 345 Wis. 2d 342, 824 N.W.2d 

921, and State v. Williams, 2014 WI 64, 355 Wis. 2d 581, 852 N.W.2d 467, do not 

disturb the harmony between WIS. STAT. §§ 939.617 and 948.12. In Lalicata, this 

court held that probation was not available as a penalty for a crime (in Lalicata’s 

case, first-degree sexual assault of a child) that carried a statutory minimum 

sentence of imprisonment. Lalicata, 345 Wis. 2d 342, ¶¶14-15. Lalicata thus 

instructs that when a specific statute requires a circuit court to impose a bifurcated 

sentence including a mandatory minimum term of confinement, the court cannot 

stay the sentence and place a person convicted of that crime on probation. Id.; see 

also Shirikian, 406 Wis. 2d 633, ¶¶1-2.

¶25 As for Williams, Brott emphasizes the fact that in that case, our 

supreme court found statutory language stating that “[t]he confinement portion of a 

bifurcated sentence imposed on the person [convicted of a seventh OWI offense] 

shall be not less than 3 years” was ambiguous as to whether it required the circuit 

court to impose a bifurcated sentence or instead required it to impose a minimum 

only if it imposed a bifurcated sentence in the first instance. Williams, 355 Wis. 2d 

581, ¶21 (emphasis added; quoting WIS. STAT. § 346.65(2)(am)6 

 

5

 We reaffirm our determination in Holcomb that the lack of ambiguity in WIS. STAT.

§ 939.617 means the rule of lenity does not apply. State v. Holcomb, 2016 WI App 70, ¶15 n.4, 

371 Wis. 2d 647, 886 N.W.2d 100.
No. 2021AP2001-CR

15

(2009-10)). Despite the ambiguity, however, the Williams court concluded that the 

statute at issue required imposition of a bifurcated sentence. Williams, 355 Wis. 2d 

581, ¶47. In reaching that conclusion, it provided an example of how “a statute that 

clearly imposed a mandatory minimum sentence might” be drafted: “The court 

shall impose a bifurcated sentence under s. 973.01, and the term of initial 

confinement shall be not less than three years.” Williams, 355 Wis. 2d 581, ¶21. 

WISCONSIN STAT. § 939.617 follows precisely that structure: “[T]he court shall 

impose a bifurcated sentence under s. 973.01” and “[t]he term of confinement in 

prison portion of the bifurcated sentence shall be at least ... 3 years[.]” Sec. 

939.617(1).

¶26 In summary, interpreting the statutes as Brott urges would require us 

to depart from the plain meaning of the text—whether read independently or 

together. It would also frustrate WIS. STAT. § 939.617’s purpose by undermining 

the legislature’s goal of ensuring that those convicted of possessing child 

pornography in violation of WIS. STAT. § 948.12 serve at least three years in 

prison—which is something we will not do. See State v. Dinkins, 2012 WI 24, ¶29, 

339 Wis. 2d 78, 810 N.W.2d 787 (“An interpretation that contravenes the manifest 

purpose of the statute is unreasonable.”). Accordingly, we conclude that the circuit 

court did not err in imposing § 939.617’s three-year mandatory minimum following 

Brott’s guilty plea to one count of possession of child pornography contrary to 

§ 948.12(1m). The circuit court properly interpreted the statutes and imposed the 

correct sentence.
No. 2021AP2001-CR

16

¶27 This brings us to Brott’s equal protection argument. “Both the 

Fourteenth Amendment to the United States Constitution[6]and article I, section 1 

of the Wisconsin Constitution[7] guarantee equal protection of the laws and afford 

substantially the same protections.” State ex rel. Harr v. Berge, 2004 WI App 105, 

¶5, 273 Wis. 2d 481, 681 N.W.2d 282. Although “[e]qual protection guarantees 

that similarly-situated persons are treated similarly[,]” it “does not require that all 

persons be dealt with identically, but [rather] ... that a distinction made have some 

relevance to the purpose for which the classification is made.” Id. (quoted source 

omitted). “[W]here a statutory classification does not involve a suspect class or a 

fundamental interest, the classification will be upheld if there is any rational basis 

to support it.” Id.

¶28 Brott’s equal protection argument amounts to an as-applied challenge 

asserting that WIS. STAT. § 939.617 violates his equal protection rights because 

some circuit courts throughout the state have purportedly failed to impose 

§ 939.617’s mandatory minimum in imposing sentence, whereas the circuit court in 

his case did apply the mandatory minimum. Even accepting Brott’s assertion that 

some circuit courts have failed to apply § 939.617’s mandatory minimum such that 

offenders in some counties have not been subjected to the mandatory minimum 

sentence while offenders in other counties have been, that some courts have failed 

to impose a lawfully required sentence in accordance with § 939.617’s mandatory 

minimum does not give rise to an equal protection claim when a court—such as the 

one here—does impose a sentence that is in accordance with the law.

 

6

 U.S. CONST. amend. XIV.

7

 WIS. CONST. art. I, § 1.
No. 2021AP2001-CR

17

¶29 Moreover, the United States Supreme Court rejected a similar 

argument in Oyler, in which the Court concluded that selective enforcement of a 

law was “not in itself a federal constitutional violation” and noted that “[e]ven

though the statistics ... might imply a policy of selective enforcement, it was not 

stated that the selection was deliberately based upon an unjustifiable standard such 

as race, religion, or other arbitrary classification.” Oyler, 368 U.S. at 456. Here, 

any failure to impose WIS. STAT. § 939.617’s mandatory minimum cannot be said 

to be knowing and deliberate or even based upon an arbitrary classification but 

rather is, at most, likely the result of an individual circuit court’s misinterpretation 

of what § 939.617 requires. Brott has failed to establish the requisites for an equal 

protection violation.

IV. CONCLUSION

¶30 The circuit court properly applied the law in sentencing Brott to three 

years of confinement followed by two years of extended supervision because, in 

doing so, it correctly interpreted and gave effect to both WIS. STAT. § 948.12, which 

makes possession of child pornography a felony and identifies the corresponding 

category of felony, and WIS. STAT. § 939.617, which dictates the mandatory 

minimum sentence for that crime. There is no conflict between these statutes, and 

there is likewise no ambiguity that renders these statutes irreconcilable. The circuit 

court therefore properly rejected Brott’s request that it disregard § 939.617’s plain 

dictate requiring a mandatory minimum. We also conclude that Brott has failed to 

establish an equal protection violation; his assertion that a different circuit court 

failed to impose the lawfully required sentence is insufficient. We therefore affirm 

the judgment of the circuit court.

By the Court.—Judgment affirmed. 
No. 2021AP2001-CR

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