State v. Brandon S. Grady

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
August 2, 2022
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.
Appeal No. 2021AP120-CR Cir. Ct. No. 2018CF4585
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I
STATE OF WISCONSIN,
PLAINTIFF-RESPONDENT,
V.
BRANDON S. GRADY,
DEFENDANT-APPELLANT.
APPEAL from a judgment and an order of the circuit court for
Milwaukee County: T. CHRISTOPHER DEE, Judge. Reversed and cause
remanded with directions.
Before Brash, C.J., Donald, P.J., and Dugan, J.
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. 2021AP120-CR
¶1 PER CURIAM. Brandon S. Grady appeals a judgment of
conviction for possession of a firearm by a felon contrary to WIS. STAT.
§ 941.29(1m)(a) (2019-20).1 Grady also appeals the trial court’s denial of his
postconviction motion requesting sentence modification or resentencing on the
grounds that the five-year mandatory minimum found in WIS. STAT. § 973.123
was erroneously applied to his case.2 The State agrees that the trial court erred in
applying the five-year mandatory minimum found in § 973.123, but argues that the
three-year mandatory minimum found in § 941.29(4m) did apply. For the reasons
set forth below, we agree that the trial court erred in applying the five-year
mandatory minimum found in § 973.123, and we conclude that the three-year
mandatory minimum found in § 941.29(4m) did apply.3 Accordingly, we reverse,
and we remand this matter for further proceedings consistent with this opinion.4
BACKGROUND
¶2 Grady was charged on September 27, 2018, in count one of
attempted first-degree intentional homicide with use of a dangerous weapon and in
1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
Grady requested both sentence modification and resentencing; however, he failed to
develop the argument that he is entitled to sentence modification. See State v. Pettit, 171 Wis. 2d
627, 646-47, 492 N.W.2d 633 (Ct. App. 1992). Thus, we address only whether Grady is entitled
to resentencing based on an incorrect application of WIS. STAT. § 971.123 to his case.
3
We note that Grady did not address the issue of whether the three-year mandatory
minimum found in WIS. STAT. § 941.29(4m) applied at the time of sentencing and did not file a
reply brief, and therefore, does not refute the State’s argument.
4
While this appeal was pending, Grady’s counsel moved to withdraw, and the appeal
was put on hold by order of this court while Grady waited the appointment of counsel. New
counsel for Grady was appointed on July 25, 2022, and by order dated July 26, 2022, the hold on
Grady’s appeal was lifted.
2
No. 2021AP120-CR
count two of possession of a firearm by a felon. The case proceeded to a jury trial
that took place in July 2019. The jury found Grady not guilty on count one and
guilty on count two.5
¶3 At the sentencing hearing on September 5, 2019, the State argued
that the mandatory minimum found in WIS. STAT. § 973.123 applied because
Grady was previously convicted of a violent felony. Trial counsel did not dispute
that Grady had a prior conviction for a violent felony, but he did dispute the
application of § 973.123 to Grady’s case.6 The trial court agreed with the State
and applied the five-year mandatory minimum found in § 973.123. In explaining
its reasons for Grady’s sentence, the trial court stated, “I have, you know, as a
judge, I can order a lot of things, but there are some things I can’t change, and
there are rules that I have to follow. And you know, the five years of initial
confinement, I have to follow. I have no choice.” Grady was subsequently
sentenced to five years of initial confinement and two years of extended
supervision.
¶4 On August 24, 2020, Grady filed a motion requesting sentence
modification or resentencing. In his motion, Grady argued that the trial court
erroneously applied the five-year mandatory minimum found in WIS. STAT.
§ 973.123 to his case. The trial court disagreed and denied Grady’s motion.
Grady now appeals.
5
The jury also found Grady not guilty of two charges of witness intimidation that had
been added over the course of the proceedings.
6
Grady argued that the five-year mandatory minimum provision did not apply because
the present conviction for possession of a firearm was insufficient to trigger the mandatory
minimum provision under WIS. STAT. § 973.123.
3
No. 2021AP120-CR
DISCUSSION
¶5 On appeal, Grady renews his argument that the trial court
erroneously applied the mandatory minimum found in WIS. STAT. § 973.123 to his
case and asks this court to “vacate the sentence imposed and remand the case for
resentencing.” In this regard, he contends that the application of § 973.123 to his
case violates Apprendi v. New Jersey, 530 U.S. 466 (2000), because the jury
found him not guilty of count one and never found that he used a firearm. He also
contends that the trial court erroneously equated “possession” of a firearm with
“use” of a firearm for purposes of § 973.123(2)(b), and that the application of
§ 973.123 requires the existence of a predicate offense, which was missing in his
case as a result of the jury’s not guilty verdict on count one.7
¶6 The State agrees that the trial court erroneously applied WIS. STAT.
§ 973.123 to Grady’s case.8 However, the State argues that WIS. STAT.
§ 941.29(4m), which provides a three-year mandatory minimum, applied to a
situation such as Grady’s. Thus, the State argues that we should vacate Grady’s
sentence and remand this matter for resentencing to apply the mandatory
minimum found in § 941.29(4m).
¶7 We conclude that, at the time of sentencing, the plain language of
§ 941.29(4m) provided the mandatory minimum sentence applicable to Grady’s
7
As a result of our conclusion, we do not address Grady’s arguments further. See
State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989).
8
Although the State opposed Grady’s motion below and argued that WIS. STAT.
§ 973.123 was appropriately applied to Grady’s sentence, on appeal the State abandoned that
argument and agrees that the trial court erred in applying the five-year mandatory minimum
provision of § 973.123.
4
No. 2021AP120-CR
sole conviction for possession of a firearm under § 941.29(1m), when the
additional requirements of § 941.29(4m) were met. Consequently, we conclude
that Grady is entitled to resentencing.
I. Principles of Statutory Interpretation
¶8 Statutory interpretation presents a question of law that we review
de novo. DOR v. River City Refuse Removal, Inc., 2007 WI 27, ¶26, 299 Wis. 2d
561, 729 N.W.2d 396. “[S]tatutory interpretation ‘begins with the language of the
statute. If the meaning of the statute is plain, we ordinarily stop the inquiry.’”
State ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d
633, 681 N.W.2d 110 (citation omitted).
¶9 We give statutory language “its common ordinary, and accepted
meaning, except that technical or specially-defined words or phrases are given
their technical or special definitional meaning.” Id. In addition, “statutory
language is interpreted in the context in which it is used; not in isolation 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.
“Statutory language is read where possible to give reasonable effect to every word,
in order to avoid surplusage.” Id. “[T]he purpose of statutory interpretation is to
determine what the statute means so that it may be given its full, proper, and
intended effect.” Id., ¶44.
II. Interpretation of WIS. STAT. §§ 941.29(4m) and 973.123
¶10 This case involves the trial court’s application of the five-year
mandatory minimum found in WIS. STAT. § 973.123 to Grady’s case. Section
5
No. 2021AP120-CR
973.123, entitled, “Sentence for certain violent offenses; use of a firearm,” in
relevant part provides:
(2) A court shall impose a bifurcated sentence under
s. 973.01 if the court sentences a person for committing a
violent felony and the court finds that all of the following
are true:
(a) At the time the person committed the violent
felony, he or she was subject to s. 941.29 because he or she
was convicted of, adjudicated delinquent for, or found not
guilty of by reason of mental disease or defect, committing,
soliciting, conspiring, or attempting to commit a prior
violent felony.
(b) The person used a firearm in the commission of
the violent felony for which the court is imposing the
sentence.
(3) The confinement portion of a bifurcated sentence
imposed pursuant to sub. (2) shall be:
(a) Not less than 5 years if the violent felony is a
Class A, Class B, Class C, Class D, Class E, Class F, or
Class G felony.
¶11 Grady was tried and convicted of possession of a firearm contrary to
WIS. STAT. § 941.29(1m)(a). This statute makes it a Class G felony for a person to
possess a firearm if that person has been convicted of a felony in this state. Id.
Section 941.29(4m) further provides:
(a) If a person commits a violation of sub. (1m), the court
shall impose a bifurcated sentence under s. 973.01 and the
confinement portion of the bifurcated sentence imposed on
the person shall be not less than 3 years if all of the
following are true:
1. The person is subject to this section because he
or she was convicted of, adjudicated delinquent for, or
found not guilty of by reason of mental disease or defect,
committing, soliciting, conspiring, or attempting to commit
a violent felony.
6
No. 2021AP120-CR
2. Any of the following applies:
a. The person committed the current offense
within 5 years after completing his or her sentence,
including any parole or extended supervision, or after
completing a period of probation imposed for a prior felony
or violent misdemeanor.
b. The person committed the current offense
while on probation, parole, extended supervision, or
conditional release for the commission of a prior felony or
violent misdemeanor.
c. The person committed the current offense
within 5 years after being discharged from commitment
under ch. 971 for the commission of a prior felony or
violent misdemeanor.
(b) This subsection does not apply to sentences imposed
after July 1, 2020.
¶12 There is no dispute that Grady has a prior conviction from December
2009 for pointing a weapon at a law enforcement officer, that the prior conviction
qualifies as a violent felony, and that he was sentenced in this case prior to July 1,
2020. The parties also stipulated at trial that Grady had been convicted of a felony
offense that prohibited him from possessing a firearm. The issue here arises with
the application of WIS. STAT. § 973.123 to Grady’s sole conviction for possession
of a firearm contrary to WIS. STAT. § 941.29(1m)(a), specifically when it is
undisputed that he also met the requirements of § 941.29(4m).
¶13 Under the plain language of WIS. STAT. § 941.29(4m), the trial court
shall impose a bifurcated sentence under WIS. STAT. § 973.01, if a person is
convicted of a violation of § 941.29(1m) and meets the additional requirements of
1. and 2. The plain language of § 941.29(4m) also states that this sentence shall
not be less than three years.
7
No. 2021AP120-CR
¶14 Grady was convicted of a violent felony in December 2009 and then
was convicted of possessing a firearm under WIS. STAT. § 941.29(1m) within five
years of completing his sentence. Grady was also sentenced prior to July 1, 2020.
Therefore, Grady satisfied all the requirements for the application of § 941.29(4m)
to his case. As the State asserts, § 941.29(4m) “applies to qualifying convictions
for felon in possession of a firearm” and “Grady’s conviction meets the
requirements of this shorter mandatory minimum.” Thus, with no other
convictions beyond his conviction for possession of a firearm and satisfaction of
the requirements found in § 941.29(4m), we need look no further than the plain
language of § 941.29(4m) to determine the mandatory minimum that was
applicable here, which was three years at the time of sentencing.
¶15 Moreover, as the State notes, WIS. STAT. § 973.123, on its face, can
apply to Grady’s situation. However, its application to Grady’s case only survives
if WIS. STAT. § 941.29(4m) is ignored. This we cannot do because § 941.29(4m)
would be rendered superfluous and mere surplusage. See Kalal, 271 Wis. 2d 633,
¶46. Instead, reading these two statutes together to avoid absurd results and
provide meaning to both, we must look to the plain language of § 941.29(4m) and
apply it to Grady’s case. See Kalal, 271 Wis. 2d 633, ¶46. We conclude that it
was, therefore, error for the trial court to apply the five-year mandatory minimum
of § 973.123 to Grady’s case.
CONCLUSION
¶16 In sum, we conclude that the mandatory minimum sentence that was
applicable to Grady’s conviction for WIS. STAT. § 941.29(1m)(a) was found in
§ 941.29(4m), and it was error for the trial court to apply the mandatory minimum
found in WIS. STAT. § 973.123 to Grady’s case. Thus, Grady is entitled to
8
No. 2021AP120-CR
resentencing because of the trial court’s error. Accordingly, we reverse the trial
court’s order denying Grady’s postconviction motion, and we remand this matter
to the trial court with directions to vacate Grady’s sentence that is now in effect,
resentence Grady consistent with this opinion, and amend the judgment of
conviction accordingly.9
By the Court.—Judgment and order reversed and cause remanded
with directions.
This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.
9
We note that the State asks that this court instruct the trial court to resentence Grady,
applying the three-year mandatory minimum sentence provided in WIS. STAT. § 941.29(4m).
However, as this court explained in State v. Wood, 2007 WI App 190, 305 Wis. 2d 133, 738
N.W.2d 81, “‘[w]hen a resentencing is required for any reason, the initial sentence is a nullity; it
ceases to exist.’ In resentencing the ‘court imposes a new sentence after the initial sentence has
been held invalid.’ … In effect, the resentencing court is starting over.” Id., ¶6 (citations
omitted). Thus, Grady’s new sentence will be imposed on the date of that sentencing hearing that
will occur after July 1, 2020, and the mandatory minimum provision provided in § 941.29(4m) is
not applicable because it does not apply “to sentences imposed after July 1, 2020.”
9