State v. Jeremy Bryan Drew

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.
September 6, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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. 2023AP911-CR Cir. Ct. No. 2019CF540

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

JEREMY BRYAN DREW,

DEFENDANT-RESPONDENT.

APPEAL from a judgment of the circuit court for Monroe County:
MARK L. GOODMAN, Judge. Affirmed.

Before Kloppenburg, P.J., Graham, and Taylor, 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. 2023AP911-CR

¶1 PER CURIAM. In 2016, the State charged Jeremy Bryan Drew
with multiple felony counts alleging crimes related to sexual assaults of his minor
child, A.B., and one count alleging physical abuse of A.B.’s older brother. 1 Drew
entered Alford pleas pursuant to a plea agreement with the State in 2018, resolving
all of the charges against him, and he was sentenced in February 2019.2

¶2 In October 2019, the State filed the criminal complaint in this action
against Drew alleging crimes related to sexual assaults of A.B.3 Drew moved to
dismiss the 2019 case. Drew argued that the charges in the 2019 case were
resolved by the plea agreement in the 2016 case, and, therefore, that the prosecutor
breached the plea agreement in the 2016 case by filing the criminal complaint in
the 2019 case. As a remedy, Drew sought the specific performance of the plea
agreement in the form of the dismissal of the 2019 case. The Monroe County
circuit court granted the motion to dismiss. The court found that the allegations
underlying the charges in the 2019 case have “virtually [the] identical fact pattern”
and time frame—comprising oral and anal sex in the family residence when A.B.
was eight or nine years old—as the allegations underlying the charges in the 2016
case. The court determined that the filing of the charges in the 2019 case breached
the prosecutor’s implicit promise that the plea agreement in the 2016 case

1
To protect the dignity and privacy of the victim, we refer to her as A.B., using initials
that do not correspond to her real name. See WIS. STAT. RULES 809.19(1)(g) and 809.86 (2021-
22). All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
2
An Alford plea is a guilty plea that allows the defendant to maintain the defendant’s
innocence but “accept a conviction and sentence for the crime.” State v. Nash, 2020 WI 85, ¶¶2,
33, 394 Wis. 2d 238, 951 N.W.2d 404 (citing North Carolina v. Alford, 400 U.S. 25, 37 (1970)).
3
For ease of reading, we generally refer to the 2016 complaint and subsequent plea and
sentencing as the “2016 case” and the 2019 complaint and subsequent proceedings as the “2019
case.”

2
No. 2023AP911-CR

constituted “a full and final resolution” of all of A.B.’s sexual assault allegations
in the time frame at issue in the 2016 case.

¶3 On appeal, the State argues that the circuit court erred when it
dismissed the 2019 case because, it contends, the charges in the 2019 case are
distinct from those resolved by the plea agreement in the 2016 case. In support,
the State relies exclusively on the offense dates stated in the charging documents
in both cases. More specifically, it argues that the charges in the 2016 case were
limited to offenses that occurred in May 2015, the date stated in the amended
information, and the charges in the 2019 case relate to offenses that occurred
before May 2015. However, the State’s argument fails because it disregards the
court’s factual findings in the 2019 case, which the State does not show are clearly
erroneous, that the offenses charged in both cases are based on allegations that
share the same fact pattern and occurred during the same time frame when A.B.
was eight or nine years old. More specifically, the State fails to support its
assertion that the 2019 case charges offenses that occurred before the offenses
charged in the 2016 case.

¶4 Accordingly, we conclude that the State fails to show that the
offenses charged in the 2019 case are distinct from those that were resolved by the
plea agreement in the 2016 case. Because the State does not develop an argument

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No. 2023AP911-CR

that the circuit court otherwise erred in granting specific performance of the 2016
plea agreement in the form of the dismissal of the 2019 case, we affirm.4

BACKGROUND

¶5 The following facts relating to the 2016 and the 2019 cases are
undisputed.

The 2016 case

¶6 A.B. was interviewed at her school by a detective and a social
worker on November 1, 2016, when she was eleven years old. She described
Drew’s actions, either by speaking or in writing during the interview, as follows.
Drew forced her to engage in anal and oral sex acts “more than 7 times.” On one
occasion, Drew entered the family bathroom as A.B. was getting out of the shower
and he “got naked,” put her on the bed in the bedroom, and “put his penis in [her]
mouth and butt.” When he took his clothes off, she asked what he was doing and
he said “wait and find out.” She thought at the time that she could trust him, could
not believe that he “did it,” and almost vomited. On other occasions, Drew
touched her breasts and her genitals with his hand, and his penis touched her
“butt” and her mouth. Drew also physically abused her and her older brother. The
sexual assaults occurred approximately two years before the November 1, 2016
interview, when A.B. would have been about nine years old.

4
Specifically, the State does not make an argument that, if we conclude that the
prosecutor breached the plea agreement, either the breach was not material or the circuit court
erroneously exercised its discretion in ordering specific performance by dismissing the 2019 case.
See State v. Deilke, 2004 WI 104, ¶¶10, 13, 274 Wis. 2d 595, 682 N.W.2d 945 (Only material
and substantial violations of the terms of a plea agreement implicate due process and require a
remedy; and an appellate court will not reverse the remedy selected by the circuit court for a
breach of a plea agreement “unless the circuit court erroneously exercised its discretion.”).

4
No. 2023AP911-CR

¶7 On November 2, 2016, the State filed a criminal complaint in
Monroe County circuit court charging Drew with the following:

(1) 1st Degree Child Sexual Assault-Sexual Contact With
a Child Under age 13, incident date November 01, 2016.

(2) Incest, incident date November 01, 2016.

….

(4) Exposing Genitals, incident date November 01, 2016.5

¶8 A.B. subsequently participated in a forensic interview. A.B.
described Drew’s conduct, either by speaking or in writing during the interview, as
follows. A.B. was sexually assaulted by Drew when she was eight or nine years
old. On one occasion, Drew came into the bathroom “butt naked” when she was
in the shower, bent her over the tub and put his penis in her “butt,” and then
followed her into the bedroom and licked her vagina. “More than once,” he came
into her bedroom early in the morning, woke her up and put his penis in her
mouth, and stopped because he had to go to work. Drew also physically abused
A.B. and her brother.6

¶9 At the preliminary hearing, defense counsel called into question the
date charged in the State’s criminal complaint. Counsel pointed out that A.B. said
in her November 1, 2016 school interview that the abuse had stopped about two
years before, thereby making the incident date of November 1, 2016,

5
The third count, which we have omitted from this list, charged Drew with physical
abuse of A.B.’s older brother. We omit this charge from our discussion because it is not material
to the arguments that the State makes on appeal.
6
We generally refer to this forensic interview and the preceding school interview
collectively as “the 2016 interviews.”

5
No. 2023AP911-CR

“impossible.” In response, the prosecutor filed an information charging the
following counts, with quotation marks as shown:

(1) 1st Degree Child Sexual Assault- Sexual Contact or
Intercourse with a Child Under Age 13, (to wit: penis to
mouth contact), incident date of “the month of May 2015”

(2) Incest, incident date of “the month of May 2015”

....

(4) Exposing Genitals, incident date November 01, 2016.

(5) 1st Degree Child Sexual Assault- Sexual Contact or
Intercourse with a Child Under Age 13, (to wit: penis to
anus contact), incident date of “the month of May 2015”

The information modified the incident dates for the first two charges from
November 1, 2016, to “the month of May 2015,” and added the fifth charge with
the “month of May 2015” incident date.

¶10 Drew moved to dismiss count 4 of the information on the ground
that there was no allegation of exposing genitals on November 1, 2016, in the
criminal complaint. In response to the motion, the prosecutor filed an amended
information, changing the date of count 4 to “the month of May 2015.”

¶11 Several months later, the State filed a second amended information
charging the following counts, with quotation marks as shown:

(1) Causing Child [Under] 13 to View/Listen to Sexual
Activity, incident date of “the month of May 2015”

(2) Incest, incident date of “the month of May 2015”

….

(4) Exposing Genitals, incident date “the month of May
2015”

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No. 2023AP911-CR

(5) 1st Degree Child Sexual Assault- Sexual Contact or
Intercourse with a Child Under Age 13, (to wit: penis to
anus contact), incident date of “the month of May 2015”

¶12 On the same date that the second amended information was filed,
Drew entered Alford pleas to the amended count of causing a child under 13 to
view/listen to sexual activity with an incident date of “the month of May 2015”
and one count of physically abusing a child, which pertained to Drew’s abuse of
A.B.’s older brother. The remaining counts were dismissed outright as part of the
plea agreement.

¶13 In February 2019, the circuit court sentenced Drew to five years
imprisonment, consisting of two and one-half years of initial confinement and two
and one-half years of extended supervision.

The 2019 case

¶14 On November 21, 2018, after Drew entered his pleas but before he
was sentenced, A.B. participated in another forensic interview. The State did not
disclose, and Drew was not otherwise aware of, this 2018 interview before Drew
was sentenced in the 2016 case. When asked why she was participating in the
interview, A.B. said that she heard from her foster mother that the authorities
“don’t have enough evidence yet to put [Drew] in jail or prison, and right now he’s
roaming free and you guys don’t want that, so you need to get as much
information out of me as possible to put him in jail.”

¶15 A.B. recounted four incidents of sexual assault as follows. On one
occasion, Drew was watching pornography and saying he “was horny.” A.B. “had
enough” of hearing his comments. She had him walk to the bedroom and lie
down, and she pulled down his pants and initiated oral sex on him. Drew asked

7
No. 2023AP911-CR

what she was doing and “was confused” when she pulled down his pants. This
incident occurred when she was “about 8” years old.

¶16 On another occasion, after the incident just described, Drew woke
A.B. up, put his penis in her mouth, and then left for work.

¶17 On another occasion, after the incident just described, Drew licked
A.B.’s vagina when she was sleeping naked in the bed with him.

¶18 On another occasion, after the incident just described, when A.B.
was in the shower, she yelled for Drew to come help her with her hair, and he told
her to bend over and put his penis in her “butt.” A.B. said that she previously
recounted this incident during her 2016 interviews.

¶19 On October 17, 2019, the State filed the criminal complaint in the
2019 case, based on A.B.’s 2018 interview. The State subsequently filed an
information that charged the following counts, with quotation marks as shown:

(1) 1st Degree Sexual Assault of a Child Under Age
12, incident date “on or between August 03, 2013 and
May 01, 2015”

(2) Incest, incident date “on or between August 03,
2013 and May 01, 2015”

(3) Exposing Genitals or Pubic Area, incident date “on
or between August 03, 2013 and May 01, 2015”

(4) 1st Degree Sexual Assault of a Child Under Age
12, incident date “on or between … August 03, 2013
and May 01, 2015”

(5) Incest, incident date “on or between August 03,
2013 and May 01, 2015”

(6) Exposing Genitals or Pubic [Area]

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No. 2023AP911-CR

(7) 1st Degree Sexual Assault of a Child Under Age 12
to wit “licking the victim’s vagina,” incident date …
“on or between August 03, 2013 and May 01, 2015”

(8) Incest, incident date “on or between August 03,
2013 and May 01, 2015”

(9) Exposing Genitals or Pubic [Area,] incident date
“on or between August 03, 2013 and May 01, 2015”

A.B. was eight and nine years old between August 3, 2013, and May 1, 2015.

¶20 Drew moved to dismiss the charges, arguing that they are precluded
by the plea agreement in the 2016 case. Drew specifically argued that the State
materially breached the plea agreement in the 2016 case by charging him with
additional crimes related to the same allegations “that precipitated” the plea
agreement in the 2016 case.7

¶21 The circuit court granted the motion and ordered specific
performance enforcing the plea agreement in the 2016 case by dismissing the 2019
case with prejudice. The court found that the facts alleged in the 2016 interviews
were largely the same as those alleged in the 2018 interview:

With one notable exception, the information [A.B.]
provided in her 2018 interview hardly differs from what
she first said in 2016. Her second time around, she again
recalled a string of sexual[] assaults suffered at the hands of
her father. They all occurred at the family residence. She
was between eight or nine years old. She again claimed
that her father subjected her to acts of fellatio, cunnilingus
and anal intercourse. Just like in 2016, she said he
assaulted her multiple times.

7
Drew also argued that the State violated Drew’s constitutional right to exculpatory
information and statutory rights to discovery by failing to disclose A.B.’s 2018 forensic interview
to him. Drew does not renew those arguments in his respondent’s brief on appeal, and,
accordingly, we do not further consider these arguments.

9
No. 2023AP911-CR

What is new in her 2018 claims is her frankly
astonishing claim that she took it upon herself to perform
oral sex. She admitted she made these additional claims
because [Drew] was free on bond and she wanted to give
law enforcement more information she believed it needed
to lock him up. Her admission is an unmistakable nexus
linking the 2016 and the 2019 complaints. Moreover, [this
new allegation] involving her volunteering to perform oral
sex is highly suspect.

¶22 The circuit court concluded that, in bringing the 2019 case for sexual
assaults that occurred when A.B. was eight or nine years old, “based on a virtually
identical fact pattern found in the 2016 [c]riminal [c]omplaint,” the prosecutor
breached the implicit promise to Drew that the plea bargain “constituted a full and
final disposition of all charges involving A.B.” based on A.B.’s allegations of
“more than seven” acts of sexual assault during that time frame. The court
explained:

Implicit was [the promise that] the plea bargain constituted
a full and final disposition of all charges involving [A.B].

This promise was implicit for the following reasons.
Initially, [A.B.] alleged in 2016 she was sexually assaulted
more than seven times. In the 2016 case, the state [] only
charged Drew with two counts of First Degree Sexual
Assault of a Child. Under the plea bargain, Count One was
amended downward. And Count Five was dismissed
outright as part of the bargain. Under the circumstances,
the outright dismissal of Count Five would lead a defendant
to reasonably believe the joint sentencing recommendation
encompassed a full and final resolution of [A.B.]’s “more
than seven” assault allegations.

¶23 The State appeals.

DISCUSSION

¶24 To repeat, the State argues that the criminal charges in the 2019 case
are distinct from the crimes charged in the 2016 case that were subject to the plea
agreement because the conduct charged in the 2016 case occurred in May 2015

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No. 2023AP911-CR

and the conduct charged in the 2019 case occurred before May 2015. We reject
this argument because it disregards the circuit court’s factual findings, which the
State does not show are clearly erroneous, that the offenses charged in both cases
share the same fact pattern and occurred during the same time frame when A.B.
was eight or nine years old. More specifically, the State fails to show that the
2018 interview disclosed, and the 2019 case charged, crimes that occurred before
the crimes alleged in the 2016 interviews and charged in the 2016 case.
Accordingly, we conclude that the State fails to show that the 2019 case charges
crimes that are distinct from those that were resolved by the plea agreement in the
2016 case.

¶25 We review de novo whether the prosecutor committed a substantial
and material breach of the plea agreement. State v. Deilke, 2004 WI 104, ¶10, 274
Wis. 2d 595, 682 N.W.2d 945. We review the circuit court’s factual findings
under a clearly erroneous standard. State v. Williams, 2002 WI 1, ¶5, 249 Wis. 2d
492, 637 N.W.2d 733; State v. Matson, 2003 WI App 253, ¶15, 268 Wis. 2d 725,
674 N.W.2d 51 (“The terms of a plea agreement and the historical facts of the
State’s conduct that allegedly constitute a breach of a plea agreement are questions
of fact,” which must be accepted unless clearly erroneous.). “Once a defendant
has [detrimentally] relied upon a prosecutorial promise in any way and the state
does not fulfill its promise, the promise is to be held enforceable against the state.”
State v. Bond, 139 Wis. 2d 179, 188, 407 N.W.2d 277 (Ct. App. 1987).

¶26 “The burden is on the party arguing a breach to show, by clear and
convincing evidence, that a breach occurred and that the breach is material and
substantial.” Deilke, 274 Wis. 2d 595, ¶13.

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No. 2023AP911-CR

¶27 Drew supports his argument of plea agreement breach by citing the
allegations in A.B.’s 2016 interviews that the sexual assaults occurred in the
family residence “about two years ago,” which would place them in 2014, and that
the sexual assaults occurred in the family residence when she was eight or nine
years old, which would place them between August 2013 and August 2015. He
argues that, by agreeing to a plea agreement that resolved the charges stemming
from these allegations, the State implicitly promised, and he reasonably believed,
that the plea agreement resolved A.B.’s allegations of sexual assault against him in
the family residence between August 2013 and August 2015.

¶28 Recall that the State based the charges of the 2019 case on the 2018
interview with A.B. The circuit court found that, as alleged by A.B., all of the
incidents recounted in the 2018 interview occurred at the family residence when
A.B. was eight or nine years old. The court also found that all of these incidents
involved the same sexual acts as A.B. recounted in her 2016 interviews that
formed the basis for the 2016 case, with the only differing fact being A.B.’s new
claim to have initiated the first incident of oral sex when she was eight years old.
As to that one difference, the court found that A.B.’s new allegation made before
Drew was sentenced in the 2016 case in order to “give law enforcement more
information she believed it needed to lock [Drew] up,” provided “an unmistakable
nexus linking the 2016 and 2019” cases.

¶29 The circuit court determined that the prosecutor made the implicit
promise in the plea agreement in the 2016 case that the plea agreement
“constituted a full and final disposition” of the charges involving the “more than
seven times” that A.B. alleged Drew sexually assaulted her in the family residence
when she was eight or nine years old. The court further determined that the
prosecutor breached that implicit promise by bringing the 2019 case charging

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No. 2023AP911-CR

sexual assaults of A.B. based “on a virtually identical fact pattern” and in the same
time frame “found in the 2016” case.

¶30 On appeal, the State does not show that the circuit court’s factual
findings—that the crimes charged in the 2019 case share the same fact pattern as
those charged in the 2016 case and occurred during the same time frame when
A.B. was eight or nine years old—are clearly erroneous. Rather, the State relies
solely on the differences in the dates of the charged conduct as identified in the
charging documents for each case. That is, the State relies on the fact that the date
of the crimes charged in the information and two amended informations in the
2016 case was listed as “the month of May 2015” (when A.B. was nine years old),
and the State contrasts that date with the date stated in the information in the 2019
case as “between August 03, 2013 and May 01, 2015” (when A.B. was eight and
nine years old). Based on these different dates, the State argues that the crimes
charged in the 2019 case occurred before the crimes charged in the 2016 case. We
reject the State’s argument for the following reasons.

¶31 The State does not on appeal explain why the amended information
in the 2016 case stated “the month of May 2015” as the date of the assaults
charged in that case, or why the information in the 2019 case states “between
August 3, 2013 and May 1, 2015” as the date of the assaults charged in that case.
More specifically, the State does not provide any record support for its assertion
that the assaults charged in the 2016 case occurred only in May 2015, or that the
assaults charged in the 2019 case occurred only between August 2013 and May
2015. Regardless, it is well established that the State is afforded greater flexibility
in alleging a time frame for the commission of child sexual assault. See State v.
Fawcett, 145 Wis. 2d 244, 250, 426 N.W.2d 91 (Ct. App. 1988) (in cases
involving child sexual assault, the date of the commission of the crime “need not

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No. 2023AP911-CR

be precisely alleged” because the date is not an element of the crime); State v.
Stark, 162 Wis. 2d 537, 544-45, 470 N.W.2d 317 (Ct. App. 1991) (the State must
“inform a defendant, within reasonable limits, of the time when the offense
charged was alleged to have been committed” because “child victims of sexual
assault are often unable to pinpoint dates”) (emphasis in original).

¶32 Here, the allegations that provided the basis for the charges in the
2016 case were not limited to May 2015, as stated in the amended information.
Rather, to repeat, the conduct alleged in the 2016 interviews that provided the
basis for the 2016 case occurred when A.B. was eight or nine years old, or from
August 2013 to August 2015. And, the conduct alleged in the 2018 interview that
provided the basis for the 2019 case also occurred when A.B. was eight or nine
years old, or from August 2013 to August 2015. The State fails to show, with
supporting cites to the record, that the 2019 case charges crimes alleged to have
occurred before the crimes alleged to have occurred as charged in the 2016 case.

¶33 The State argues that this case is like State v. Zanelli, 212 Wis. 2d
358, 569 N.W.2d 301 (Ct. App. 1997). In that case, this court concluded that a
defendant’s plea in a criminal proceeding did not preclude the State from pursuing
civil commitment of the defendant as a sexually violent person under WIS. STAT.
ch. 980 on completion of the criminal sentence. Id. at 367-68. We explained that
“the record [did] not reflect that Zanelli bargained for the State’s promise to
forego a future ch. 980 proceeding,” and we cited case law stating that a potential
ch. 980 petition is a “collateral consequence” of a guilty plea and depends on
evidence of the defendant’s condition at the time of the petition. Id. By contrast,
here the 2019 case is not a collateral consequence of Drew’s guilty plea in the
2016 case, and it is based on allegations that share both the same fact pattern and

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No. 2023AP911-CR

time frame as the allegations that provided the basis for the 2016 case. The State
does not show that the situation in Zanelli is analogous to the situation here.

¶34 The State also argues that this case is like State v. Killian, 2023 WI
52, 408 Wis. 2d 92, 991 N.W.2d 387. In that case, our supreme court concluded
that Killian’s second prosecution following a mistrial did not violate double
jeopardy because the new offenses were not identical in law or fact to the offenses
charged in his first prosecution. Id., ¶¶3, 50. However, Killian is easily
distinguished from this case. Unlike in Killian, this case does not involve a
mistrial, a trial of any kind, or an argument based on the identical-in-law-and-fact
analysis that underlies a double jeopardy claim. Rather, this case concerns the
application of contract principles to a plea agreement that resolved charges in the
2016 case based on allegations that shared the same fact pattern and time frame as
the allegations that provided the basis for the charges in the 2019 case. The State
does not show that the analysis in Killian informs our analysis here.

¶35 The State makes general and non-controversial assertions about the
State not being precluded from “bringing additional charges” after an earlier
prosecution in “often messy” child sexual assault cases. However, the State does
not ground these assertions in the facts or record of this case. In sum, we conclude
that the prosecutor breached the plea agreement in the 2016 case when it brought
charges in the 2019 case that: (1) are based on allegations that share the same fact
pattern and time frame as the allegations that provided the basis for the 2016 case;

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No. 2023AP911-CR

and (2) the State does not show alleged crimes that occurred earlier than the
crimes alleged in the 2016 case.8

CONCLUSION

¶36 For the reasons stated above, we affirm.

By the Court.—Judgment affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

8
The State also argues that the circuit court erred when it “followed” the “red herring” of
Drew’s analysis of the State’s purported discovery violation, and “suggested” that the prosecutor
was obligated to inform Drew that the plea agreement did not fully resolve all of A.B.’s
allegations. We reject these characterizations of the court’s decision. In any event, we do not
address these arguments further because, as stated in ¶25, we review de novo the legal question of
whether the facts establish a breach of the plea agreement.

16