State v. Fradario L. Brim

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.
July 26, 2023
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. 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

¶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”).

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No. 2022AP337

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

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No. 2022AP337

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.

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No. 2022AP337

¶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).

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No. 2022AP337

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,

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No. 2022AP337

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).

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No. 2022AP337

¶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 adverse-
evidentiary-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.

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No. 2022AP337

By the Court.—Order affirmed.

This opinion will not be published.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

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