State v. Michael J. Bloom

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 20, 2025
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. 2023AP2128-CR Cir. Ct. No. 2021CF289

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MICHAEL J. BLOOM,

DEFENDANT-APPELLANT.

APPEAL from a judgment and an order of the circuit court for
Kenosha County: BRUCE E. SCHROEDER, Judge. Affirmed.

Before Neubauer, P.J., Grogan, 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. 2023AP2128-CR

¶1 PER CURIAM. Michael J. Bloom appeals a judgment of
conviction for fifth-offense operating while intoxicated (“OWI”) and an order
denying his postconviction motion. Bloom contends that he was entitled to an
evidentiary hearing on his ineffective assistance of counsel claims and that the
circuit court erroneously exercised its discretion in deeming Bloom ineligible for
the Substance Abuse Program (“SAP”). Bloom raises two ineffective assistance
claims: first, that defense counsel was ineffective in handling the State’s failure to
preserve a written statement provided by a witness to law enforcement, and
second, that defense counsel should have objected because the colloquy regarding
Bloom’s right to testify wrongly gave him the impression that if he testified, the
jury would learn about his prior OWI convictions.

¶2 We reject Bloom’s arguments. His ineffective assistance claim
based on the State’s failure to preserve the written witness statement fails because
there is no evidence that the written statement was material, exculpatory, or
unobtainable in any other way. Bloom’s second ineffective assistance argument is
similarly unavailing; the Record conclusively shows that Bloom had made the
decision not to testify before the circuit court mentioned the possibility of
cross-examination using prior convictions. Finally, regarding Bloom’s sentencing
claim, the court’s sentence was individualized and its comments on the efficacy of
the SAP did not indicate a categorical rejection of the program. Accordingly, we
affirm.

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No. 2023AP2128-CR

BACKGROUND

¶3 On March 15, 2021, the State charged Bloom with fifth-offense
OWI. See WIS. STAT. §§ 346.63(1)(a) and 346.65(2)(am)5. (2023-24).1 The day
prior, Paul N. had called 911 to report that an SUV had driven into a ditch near his
residence. Paul told law enforcement that he saw a very intoxicated man exit the
SUV. The man fled on foot when Paul told him that police were on their way.
Paul, with the help of his dog, found Bloom nearby, and Bloom was taken into
custody. Bloom had a blood alcohol concentration level of .310 grams per 100
milliliters.

¶4 The case was tried to a jury. At trial, Paul testified that he was
watching television at night at his residence when he heard an engine revving
outside. Paul saw headlights in the woods and went outside with a flashlight. As
Paul reached the halfway point of his driveway, he heard the engine stop revving
and called 911. By the time Paul reached the end of his driveway, he heard the
engine was off. Paul saw that there was an SUV in the ditch and approached. As
he did so, he saw a male exit the vehicle from the driver’s seat. The man took off
when Paul told him he had called the police.

¶5 Afterwards, Paul provided a written statement to Sheriff’s Deputy
Timothy Thornton, who subsequently testified that the statement had been lost
after it was submitted to the department’s records division. However, Deputy
Thornton testified that his incident report contained Paul’s statement in substance

1
All references to the Wisconsin Statutes are to the 2023-24 version.

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No. 2023AP2128-CR

and that the report would have noted any inconsistencies between Paul’s initial
account of the incident and his subsequent written statement.

¶6 Jeffrey E., Bloom’s friend, testified for the defense and stated that he
and Bloom had gone fishing in Illinois on the day of the accident. Jeffrey testified
that as he was driving Bloom home in Jeffrey’s SUV, they got into an argument
and he drove into a ditch. Afterwards, Jeffrey said he took the SUV keys, walked
to Bloom’s house, left those keys there, and drove home in Bloom’s vehicle.
According to Jeffrey, at no point did Bloom drive while intoxicated. However,
Jeffrey did not come forward to provide a statement to the police after learning
that Bloom had been arrested and charged with OWI.

¶7 At trial, the circuit court began a colloquy with Bloom regarding his
right to testify by noting that Bloom’s attorney had informed the court that Bloom
would not testify. As part of the colloquy, the court advised that Bloom could be
cross-examined if he testified, including regarding his criminal record. The court
explained that it did not know whether it would permit the prosecutor to ask about
Bloom’s prior OWI convictions, but that it was possible. Following the remainder
of the colloquy, Bloom confirmed his decision not to testify. Defense counsel did
not object to the nature of the colloquy.

¶8 The jury found Bloom guilty. The circuit court sentenced Bloom to
three years of initial confinement and five years of extended supervision. The
court also deemed him ineligible for the SAP. The court questioned the efficacy
of the program saying, “I don’t buy into this idea that ... treatment is the only way
to deal with DWI, and as a matter of fact, I don’t think it is generally shown to be
that effective.” The court also stated its rationale for the sentence stating, “We

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No. 2023AP2128-CR

want to make an example of somebody who does something like that. ... You are
going to have to pay a price for this kind of behavior so don’t do it.”

¶9 Bloom filed a postconviction motion. In it, he raised two claims of
ineffective assistance of counsel, arguing his trial attorney failed to provide
constitutionally adequate representation in the handling of Paul’s missing written
statement, and by failing to object to the circuit court’s explanation during the
waiver colloquy of how Bloom might be cross-examined regarding his prior
OWIs. Bloom also argued that, when sentencing him, the court erred by making
him ineligible for the SAP. The court denied the motion, as well as a motion for
reconsideration, without an evidentiary hearing.

DISCUSSION

¶10 On appeal, Bloom renews his arguments that trial counsel was
constitutionally ineffective for not raising a destruction of evidence claim and for
not objecting to the circuit court’s explanation of the scope of potential
cross-examination during the waiver colloquy. Bloom argues that, at a minimum,
his ineffective assistance claims were sufficiently pled, and that he is entitled to
hearings on these claims. Bloom also renews his argument that the court erred by
making him ineligible for the SAP. We reject his arguments for the reasons that
follow.

I. Bloom did not receive constitutionally ineffective assistance regarding
the missing witness statement or his right to testify.

¶11 Whether a defendant was denied the right to effective assistance of
counsel is a mixed question of fact and law. State v. Mayo, 2007 WI 78, ¶32, 301
Wis. 2d 642, 734 N.W.2d 115. The circuit court’s factual findings must be upheld
unless clearly erroneous, while its application of constitutional principles to those

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No. 2023AP2128-CR

facts is reviewed independently. See id. This court also reviews de novo whether
the allegations in a postconviction motion are sufficient to warrant an evidentiary
hearing. State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996).

¶12 To prevail on a claim of ineffective assistance of counsel, the
defendant must prove both that his lawyer’s representation was deficient and that
he suffered prejudice because of that deficient performance. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Deficient performance is defined as
specific acts or omissions of counsel that were “outside the wide range of
professionally competent assistance,” and there is a strong presumption that
counsel rendered adequate assistance. Id. at 690.

¶13 To prove prejudice, “‘[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” State v. Pitsch,
124 Wis. 2d 628, 642, 369 N.W.2d 711 (1985) (quoting Strickland, 466 U.S. at
694). A defendant is entitled to an evidentiary hearing on a claim of ineffective
assistance if the postconviction motion “alleges sufficient material facts that, if
true, would entitle the defendant to relief.” State v. Allen, 2004 WI 106, ¶9, 274
Wis. 2d 568, 682 N.W.2d 433.

A. Bloom’s motion did not articulate a potentially meritorious ineffective
assistance claim regarding Paul’s missing statement.

¶14 A defendant’s right to due process can be violated in two ways when
the state fails to preserve evidence. State v. Greenwold, 189 Wis. 2d 59, 67, 525
N.W.2d 294 (1994). However, Bloom argues that his due process rights were
violated in only one way here, when police failed to preserve “evidence that might

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No. 2023AP2128-CR

be expected to play a role in the suspect’s defense.” California v. Trombetta, 467
U.S. 479, 488 (1984). To satisfy this standard, the evidence must both:
(1) “possess an exculpatory value that was apparent to those who had custody of
the evidence ... before the evidence was destroyed, and (2) ... be of such a nature
that the defendant would be unable to obtain comparable evidence by other
reasonably available means.” State v. Oinas, 125 Wis. 2d 487, 490, 373 N.W.2d
463 (Ct. App. 1985) (discussing Trombetta, 467 U.S. at 488–89). To satisfy this
standard, the defendant must prove that the evidence was not merely potentially
exculpatory, but apparently exculpatory. State v. Munford, 2010 WI App 168,
¶21, 330 Wis. 2d 575, 794 N.W.2d 264.

¶15 Bloom asserts that the missing statement from Paul had apparent
exculpatory value because it could be used to impeach Paul. The logic he uses to
reach this point is murky at best. Bloom focuses on Paul’s trial testimony that he
heard the SUV’s engine shut off while Bloom was the only vehicle occupant,
observing that this testimony contradicted Jeffrey’s assertion that he took the SUV
keys and departed on foot. Bloom asserts Paul’s missing written statement must
not have included Paul’s trial assertion that he heard the engine turn off, because
that assertion was not present in the police incident report and surely would have
been recorded.

¶16 Among the many problems with this argument, the most significant
is that the police report is not in the appellate record. Without the police report, it
is impossible for this court to conduct the comparative exercise that Bloom
encourages and to verify that the police report does not, in fact, include the
information Paul provided at trial. Bloom concedes the report is not in the Record,
but he argues that he would have introduced it as an exhibit had an evidentiary
hearing been held. He does not explain why the report was not included as an

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No. 2023AP2128-CR

attachment to his motion or submitted via affidavit with the motion. Without the
police report, the motion was speculative, and the circuit court properly denied it
without a hearing. See State v. Wirts, 176 Wis. 2d 174, 187, 500 N.W.2d 317 (Ct.
App. 1993).

¶17 Even assuming the statement (and police report) did not mention
hearing the engine shut off, Bloom has failed to demonstrate this was material
information that held apparent exculpatory value. Bloom does not suggest the
statement or police report contradicted Paul’s testimony that the vehicle was
running at the time Paul’s attention was drawn to it, and therefore the keys must
have been with the vehicle and not, as Jeffrey claimed, in Jeffrey’s possession.
The additional information that Paul heard the vehicle turn off while he was in his
driveway does not add anything to support Jeffrey’s account. Bloom’s motion
fails to establish deficient performance or prejudice stemming from his trial
attorney’s handling of the missing witness statement.

B. Bloom’s motion was insufficient to demonstrate a potentially
meritorious issue regarding his attorney’s constitutional effectiveness
during the colloquy about Bloom’s potential testimony.

¶18 Bloom next asserts that his trial attorney was constitutionally
ineffective for his handling of the colloquy regarding Bloom’s right to testify. A
defendant’s waiver of his or her right to testify must be knowing, intelligent, and
voluntary. State v. Jaramillo, 2009 WI App 39, ¶11, 316 Wis. 2d 538, 765
N.W.2d 855. Circuit courts are mandated to conduct a colloquy with the
defendant who elects not to testify to ensure that the defendant is waiving the right
knowingly, intelligently, and voluntarily. State v. Weed, 2003 WI 85, ¶¶40-41,
263 Wis. 2d 434, 666 N.W.2d 485. The colloquy should be “simple and
straightforward” to avoid interfering with trial strategy and the attorney-client

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No. 2023AP2128-CR

relationship. Id., ¶41. The court must inquire whether: “(1) the defendant is
aware of his or her right to testify and (2) the defendant has discussed this right
with his or her counsel.” Id., ¶43.

¶19 We reject Bloom’s assertion because the Record conclusively
demonstrates that Bloom is not entitled to relief. Bloom had already made the
decision not to testify before the colloquy, which the circuit court acknowledged
when it stated, “Mr. Bloom, your lawyer has indicated you don’t desire to testify
in the case.” The alleged error by counsel in failing to object to the colloquy to
ensure that Bloom understood how his prior convictions could be used against him
at trial was not prejudicial because Bloom had already made up his mind not to
testify before the colloquy. See State v. Nelson, 2014 WI 70, ¶35, 355 Wis. 2d
722, 849 N.W.2d 317. Thus, even assuming Bloom interpreted the court’s
comments during the colloquy as potentially allowing cross-examination on the
nature of his prior convictions and not just their number, see State v. Alexander,
214 Wis. 2d 628, 649–50, 571 N.W.2d 662 (1997), trial counsel’s failure to object
during the colloquy was not prejudicial.2

II. The circuit court did not erroneously exercise its discretion by deeming
Bloom ineligible for the SAP.

¶20 When sentencing, a circuit court’s decision to deny eligibility for the
SAP is reviewed for an erroneous exercise of discretion. See State v. Owens, 2006
WI App 75, ¶¶6-7, 291 Wis. 2d 229, 713 N.W.2d 187. “A discretionary decision

2
Bloom also argues that defense counsel’s errors were prejudicial in their cumulative
effect. See State v. Thiel, 2003 WI 111, ¶¶59–60, 264 Wis 2d 571, 665 N.W.2d 305. However,
there is no cumulative prejudice because any deficiencies by counsel were not prejudicial.

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No. 2023AP2128-CR

will be affirmed if it is made based upon the facts of record and in reliance on the
appropriate law.” Id., ¶7.

¶21 Bloom has not demonstrated that the circuit court erroneously
exercised its discretion when it denied him eligibility for the SAP. Bloom argues
that the court had a categorical policy against SAP eligibility. He contends that
the court’s purported categorical policy deprived him of an individualized
sentence. We disagree.

¶22 A circuit court must provide “a rational and explainable basis” for
the sentence imposed. McCleary v. State, 49 Wis. 2d 263, 276, 182 N.W.2d 512
(1971). The court has “wide discretion in determining” which factors should carry
the most weight in a given case. State v. Gallion, 2004 WI 42, ¶68, 270 Wis. 2d
535, 678 N.W.2d 197. However, the court must consider the protection of the
public, the gravity of the offense, and the defendant’s rehabilitative needs. See
Id., ¶23. The court is also free to weigh a range of additional considerations
relevant to sentencing. Harris v. State, 75 Wis. 2d 513, 519–20, 250 N.W.2d 7
(1977).

¶23 There is “a ‘strong public policy against interference with the
sentencing discretion of the [circuit] court and sentences are afforded the
presumption that the [circuit] court acted reasonably.’” State v. Spears, 227
Wis. 2d 495, 506, 596 N.W.2d 375 (1999) (citation omitted). The court’s
discretionary decision on eligibility to participate in SAP is an example of the
court’s wide exercise of its sentencing discretion. See Owens, 291 Wis. 2d 229,
¶9.

¶24 Here, the circuit court’s sentencing comments are not indicative of a
general, as opposed to individualized, sentencing policy. The court clearly did not

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No. 2023AP2128-CR

view the SAP favorably, but it did not categorically rule out ever using the
program. Additionally, the court’s sentence was otherwise tailored to the facts of
Bloom’s case. The court stated that its sentencing objective was to make an
example out of Bloom to deter others from committing the same offense due to the
gravity of the offense and the danger to the public that OWI poses, particularly
given Bloom’s extreme level of intoxication, his flight from the scene, and that
this was a fifth offense. This rationale was also linked to the denial of SAP
eligibility; completion of the SAP reduces the confinement period of a sentence,
and this would have undermined the goal of deterrence.

CONCLUSION

¶25 Bloom has not established that he suffered prejudice for either of his
ineffective assistance of counsel claims because he has failed to show that the lost
statement was material or exculpatory and he had already decided not to testify
before the colloquy. Therefore, the circuit court properly dismissed his claims for
ineffective assistance of counsel without a hearing. Additionally, since Bloom
failed to show that the court erred by deeming him ineligible for the substance
abuse program, the court properly dismissed this claim without a hearing.

By the Court.—Judgment and order affirmed.

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

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