COURT OF APPEALS

DECISION

DATED AND FILED

July 26, 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. 2022AP337 Cir. Ct. No. 1995CF47

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

FRADARIO L. BRIM,

 DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Racine County: 

JON E. FREDRICKSON, Judge. Affirmed. 

Before Gundrum, P.J., Neubauer and Lazar, 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). 
No. 2022AP337

2

¶1 PER CURIAM. Fradario L. Brim appeals from an order denying 

his WIS. STAT. § 974.06 (2021-22)1 motion to withdraw his guilty pleas and vacate 

his conviction based on newly discovered evidence, the denial of his right to 

effective assistance of trial counsel, and because the evidence underlying his 

conviction was insufficient. He also argues he is entitled to discretionary reversal 

in the interest of justice based on the previous arguments as well as because the 

§ 974.06 judge was biased against him. We affirm.

¶2 In 1995, a criminal complaint alleged that Brim shot at three young 

boys—Sam, Keith, and Ronald.2 When officers responded, they observed Brim 

discharging a handgun, chased him, and took him into custody. Sam identified 

Brim as the shooter. When Brim saw Sam at the police station, he told officers “if 

I find him he’s gonna get got” and advised officers to put Sam into protective 

custody. Brim ultimately pled guilty to two counts of first-degree recklessly 

endangering safety while armed and was sentenced. 

¶3 In 2020, almost twenty-five years later, Brim claimed innocence and 

moved to withdraw his guilty pleas under WIS. STAT. § 974.06 or in the interest of 

justice. Brim asserted that he was entitled to plea withdrawal based on newly 

discovered evidence and his counsel’s ineffectiveness. Specifically, Brim 

presented an affidavit from Keith, who averred that Sam lied to police about Brim 

shooting at them and, in fact, no one shot at them. Brim argued trial counsel was 

ineffective for failing to investigate. After an evidentiary hearing, the circuit court 

 

1

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

noted.

2

 Pursuant to the policy underlying WIS. STAT. RULE 809.86(4), we use pseudonyms

when referring to the victims in this case (“Sam,” “Keith,” and “Ronald”). 
No. 2022AP337

3

denied Brim’s plea withdrawal motion, rejecting his newly discovered evidence 

and his ineffective assistance of counsel allegations. Brim appeals. 

¶4 A defendant who seeks to withdraw a guilty plea after sentencing 

“carries the heavy burden of establishing, by clear and convincing evidence, that 

withdrawal of the plea is necessary to correct a manifest injustice.” State v. 

McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997). Plea withdrawal is 

committed to the circuit court’s discretion. Id. 

¶5 In order to warrant plea withdrawal on the basis of newly discovered 

evidence, a defendant must show by clear and convincing evidence that:

(1) the evidence was discovered after conviction; 

(2) the defendant was not negligent in seeking evidence; 

(3) the evidence is material to an issue in the case; and 

(4) the evidence is not merely cumulative. If the defendant 

proves these four criteria by clear and convincing evidence, 

the circuit court must determine whether a reasonable 

probability exists that a different result would be reached in 

a trial.

Id. 

¶6 Here, the circuit court held, in part, that Brim failed “to show, by 

clear and convincing evidence, that he was not negligent in seeking out” the newly 

discovered evidence. In making that determination, the court observed that the 

record was “devoid of any reason [why] Brim waited nearly 25 years to seek out 

[Sam] and [Keith] for potential recantations.” 

¶7 We agree. Although Brim attributes the delay to trial counsel’s 

failure to adequately investigate his case, Brim has not accounted for his 

negligence in failing to investigate his claims during the last twenty-five years. He 

offers no explanation for his own failure to raise concerns about Sam’s version of 
No. 2022AP337

4

events, which he characterized as “highly incredible.” Additionally, Brim does 

not explain whether he asked his postconviction counsel, who was appointed in 

1996 and filed a motion for sentence credit on Brim’s behalf, to explore this issue. 

Brim also fails to explain why he did not ask his other counsel, who represented 

him at a 1998 probation revocation hearing, to investigate his concerns about 

Sam’s credibility. Without more, we agree with the circuit court that Brim failed 

to meet his burden of showing by clear and convincing evidence that he was not 

negligent in failing to pursue this “new” evidence. Brim’s failure to demonstrate 

that he was not negligent is fatal to his newly discovered evidence claim. We 

conclude the circuit court did not err by denying plea withdrawal on this basis.

¶8 Brim next argues he should be permitted to withdraw his guilty pleas 

because trial counsel was ineffective. Plea withdrawal may be warranted if the 

defendant received ineffective assistance of counsel. State v. Dillard, 2014 WI 

123, ¶84, 358 Wis. 2d 543, 859 N.W.2d 44. To prove ineffective assistance of 

counsel, Brim must show that his trial counsel’s performance was deficient, and 

that he was prejudiced by the deficient performance. See Strickland v. 

Washington, 466 U.S. 668, 687 (1984). To demonstrate deficient performance, 

the defendant must show that trial counsel’s representation fell below an objective 

standard of reasonableness. See id. at 688. 

¶9 Brim asserts trial counsel was ineffective for failing to properly 

investigate the complaining victims. Brim also faults trial counsel for not 

investigating his purported alibi witnesses and for not adequately communicating 

with him. 
No. 2022AP337

5

¶10 The circuit court concluded Brim had not established counsel’s 

performance was deficient.3 The court rejected Brim’s claim that trial counsel 

never investigated the complaining witnesses. The court relied on the 

investigating detective’s testimony that he interviewed Keith the night of the 

shooting and Keith, like Sam, told the detective that Brim shot at him. The court 

found there was no evidence that trial counsel was unaware of this interview. The 

court also found Brim provided no evidence corroborating his assertions that trial 

counsel did not investigate his alibi witnesses. Brim’s purported alibi witnesses 

did not testify at the hearing and, given the fact that Brim was chased down and 

arrested by officers in the same location as the shooting and was observed firing 

the same gun described by Sam, the court was uncertain what testimony any alibi 

witness would have offered. As to trial counsel’s performance in general, the 

court found that: 

[Trial counsel] demonstrated strong knowledge that the 

heart of the case was a credibility battle between the boys’ 

varying recollections of who was in the alley and whether 

they were shot at. Brim testified that [trial counsel] 

counseled him on ... how being found by police shooting 

the small silver pistol, and the subsequent police station 

threats against police [and] against 12 year old [Sam], 

would be received at trial. [Trial counsel] advised Brim 

that with these facts, he didn’t have much to work with. 

[Trial counsel] filed appropriate motion work on Brim’s 

behalf. He moved to suppress [Sam’s] identification of 

Brim. He moved to dismiss the case because of the 

inconsistent stories. He filed an alibi, and he had multiple 

tactical litigation defense discussions with Brim prior to the 

pleas, which Brim has acknowledged. 

 

3

 Brim’s trial counsel was unavailable to testify at the evidentiary hearing because he has 

dementia. See State v. Lukasik, 115 Wis. 2d 134, 140 (Ct. App. 1983) (holding that if trial 

counsel is dead, insane, or unavailable, allegations of ineffectiveness must be corroborated, and 

the defendant cannot rebut the presumption of effectiveness with his own testimony).
No. 2022AP337

6

 The evidence against Brim was strong in 1995, despite 

the conflicting stories of [Sam] and [Ronald]. Brim had no 

viable defense to the Felony D threat to intimidate 

witnesses, one of which was a 12 year old boy, and the 

Misdemeanor A possession of a weapon by a minor which 

the police were witness to. Despite the evidence against 

Brim, [trial counsel] still negotiated a plea deal that was so 

good that the Judge commended [trial counsel] on his 

negotiating skill. Despite Brim’s belief in his innocence on 

the Felony D recklessly endangering safety counts, both 

Brim, and his family, thought the plea deal sounded good. 

The plea colloquy was detailed and thorough, and there was 

no indication Brim did not understand what he was doing at 

the time. Brim’s guilty plea was knowingly, voluntarily, 

and intelligently made.

¶11 Here, given the factual findings and credibility determinations made 

by the circuit court in rendering its decision, we agree that Brim has not 

established trial counsel’s representation fell below an objective standard of 

reasonableness. See Strickland, 466 U.S. at 688; see also State v. Jeninga, 2019 

WI App 14, ¶13, 386 Wis. 2d 336, 925 N.W.2d 574 (explaining that unless clearly 

erroneous, we uphold the circuit court’s factual findings, and we independently 

review whether those facts establish deficient performance). We therefore 

conclude trial counsel was not ineffective. See id., ¶11 (requiring a defendant to 

demonstrate both deficient performance and prejudice to prove ineffective 

assistance). 

¶12 Brim then argues he should be permitted to withdraw his guilty pleas 

because the evidence supporting his conviction is insufficient. However, the 

guilty-plea-waiver rule forecloses Brim’s challenge to the sufficiency of the 

evidence that supported his conviction. See State v. Kelty, 2006 WI 101, ¶18, 294 

Wis. 2d 62, 716 N.W.2d 886 (noting that under the guilty-plea-waiver rule, “a 

guilty ... plea ‘waives all nonjurisdictional defects, including constitutional 

claims[.]’” (citation omitted)). Here, Brim executed a guilty plea waiver form, 
No. 2022AP337

7

affirmatively stating, “I will be giving up my right to make the State prove me 

guilty by evidence beyond a reasonable doubt on each and every element of this 

offense.” Brim also did not object to the circuit court’s use of the complaint to 

find “that a factual basis exists for accepting my plea of guilty/no contest.” The 

complaint’s allegations in turn contained Sam’s description of Brim discharging a 

firearm at Sam and Keith. Brim’s unqualified admission of guilt established a 

factual basis for Brim’s pleas and prevents Brim from now challenging the 

sufficiency of the evidence. See id.

¶13 Finally, Brim argues he is entitled to discretionary reversal in the 

interests of justice based on his claims of newly discovered evidence, ineffective 

assistance of counsel, and insufficient evidence. He also argues he is entitled to 

discretionary reversal in the interest of justice because the WIS. STAT. § 974.06 

judge was biased against him. 

¶14 Under WIS. STAT. § 752.35, this court may order a new trial “if it 

appears from the record that the real controversy has not been fully tried, or that it 

is probable that justice has for any reason miscarried.” We conclude Brim failed

to establish that this is an “exceptional case[]” warranting discretionary reversal. 

See State v. Schutte, 2006 WI App 135, ¶62, 295 Wis. 2d 256, 720 N.W.2d 469 

(“We exercise our authority to reverse in the interest of justice under ... § 752.35 

sparingly and only in the most exceptional cases.”). Brim’s arguments regarding 

newly discovered evidence, ineffective assistance of counsel, and insufficient 

evidence merely rehash arguments that we have already rejected. See State v. 

Ferguson, 2014 WI App 48, ¶33, 354 Wis. 2d 253, 847 N.W.2d 900 (denying 

interest-of-justice claims that rehash arguments that failed on other grounds). 
No. 2022AP337

8

¶15 As to his judicial bias claim, when “analyzing a judicial-bias claim, 

we start with the ‘presumption that the judge is free of bias and prejudice.’” State 

v. Pirtle, 2011 WI App 89, ¶34, 334 Wis. 2d 211, 799 N.W.2d 492 (citation 

omitted). The defendant has the burden to prove the court was biased. Id. 

¶16 Brim argues the WIS. STAT. § 974.06 judge was biased because he 

initially denied Brim’s motion without a hearing, but after learning Brim had been 

produced for a hearing, decided to go forward with an evidentiary hearing and 

ultimately issued a written decision that “did not substantially differ” from the one 

it issued before the evidentiary hearing. Brim also argues the judge was biased 

because, during the evidentiary hearing, the judge made several evidentiary rulings 

against Brim, including disallowing Brim from presenting corroborating evidence 

through the investigating detective and expert testimony from a law professor. 

¶17 We conclude Brim has not overcome the presumption that the judge 

acted impartially and without bias. First, the judge’s decision to deny and then 

grant Brim an evidentiary hearing does not show bias. Additionally, comparing 

the judge’s twelve-page retracted dismissal order with his thirty-four page final 

order belies Brim’s contention that the decisions “did not substantially differ.” 

The circuit court’s final decision reflects that the court considered the evidence 

from the hearing and made credibility determinations. As to Brim’s adverseevidentiary-rulings claim, we will assume without deciding that these evidentiary 

rulings were erroneous. However, erroneous evidentiary rulings do not, by 

themselves, establish judicial bias. We see no reason to exercise our discretionary 

reversal authority. See WIS. STAT. § 752.35.
No. 2022AP337

9

By the Court.—Order affirmed.

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

RULE 809.23(1)(b)5.