COA rejects several claims in felon-in-possession case

State v. Michael James Brehm, 2020AP266, 6/29/21, District 1 (not recommended for publication); case activity

Brehm was arrested after a neighbor called 911 to report that he was firing a gun out his window into the air. Police recovered a gun and Brehm admitted to the shooting. He eventually pleaded guilty to being a felon in possession of a firearm.

Brehm raises several issues, all of which the court of appeals rejects.

• Brehm was subject to the mandatory minimum sentence in Wis. Stat. § 941.29(4m)(a). This statute says the court “shall impose a bifurcated sentence” involving not less than three years initial confinement. Brehm argues the circuit court could have imposed and stayed such a sentence and placed him on probation. The circuit court rejected this claim and the court of appeals does too, following the rule set out in the very similar State v. Williams, 2014 WI 64, 355 Wis. 2d 581, 852 N.W.2d 467 (which involved a mandatory minimum for OWIs).
• Brehm claims the statute is overbroad. The court of appeals says he’s failed to develop an argument that its language “is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.”
• Brehm raises an inaccurate information sentencing claim, arguing that the court was not required to impose the three years of IC. Because the court of appeals has concluded that this was required, it rejects this claim.
• Brehm claims his trial lawyer was ineffective for failing to request a PSI, for failing to adduce evidence that he didn’t own the gun, and for failing to advise him “not to make statements to his detriment” at sentencing. The court of appeals concludes he has not established either deficient performance or prejudice.