State v. John R. Brott

2023 WI App 45

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2021AP2001-CR

†Petition for Review filed

Complete Title of Case:

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN R. BROTT,

DEFENDANT-APPELLANT.†

Opinion Filed: August 30, 2023
Submitted on Briefs: December 15, 2022
Oral Argument:

JUDGES: Neubauer, Grogan and Lazar, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the defendant-appellant, the cause was submitted on the
briefs of Jason D. Luczak and Jorge R. Fragoso of Gimbel, Reilly,
Guerin & Brown, L.L.P., Milwaukee.

Respondent
ATTORNEYS: On behalf of the plaintiff-respondent, the cause was submitted on the
brief of Sonya K. Bice, assistant attorney general, and Joshua L. Kaul,
attorney general.
2023 WI App 45

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 30, 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. 2021AP2001-CR Cir. Ct. No. 2019CF973

STATE OF WISCONSIN IN COURT OF APPEALS

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JOHN R. BROTT,

DEFENDANT-APPELLANT.

APPEAL from a judgment of the circuit court for Waukesha County:
JENNIFER DOROW, Judge. Affirmed.

Before Neubauer, Grogan and Lazar, JJ.

¶1 GROGAN, J. John R. Brott appeals from a judgment entered after
he pled guilty to possession of child pornography, contrary to WIS. STAT.
No. 2021AP2001-CR

§ 948.12(1m) (2021-22).1 He challenges the circuit court’s decision denying his
request to depart from the mandatory minimum sentence of three years in prison set
forth in WIS. STAT. § 939.617(1). Brott contends that the circuit court is not bound
by this statutory mandatory minimum sentence because it conflicts, he says, with
what he believes is permissive sentencing language found in § 948.12(1m). He
further contends that § 939.617’s mandatory minimum has not been consistently
applied throughout the state, thereby violating his constitutional right to equal
protection.

¶2 We conclude there is no conflict between the statutes in question.
Therefore, the circuit court correctly sentenced Brott in accordance with the
mandatory minimum for his crime. We also conclude that Brott has failed to show
an equal protection violation. Because the circuit court imposed a sentence
consistent with the law, we affirm.

I. BACKGROUND

¶3 In May 2019, a tip from the National Center for Missing and Exploited
Children alerted authorities that child pornography was being uploaded to an IP
address determined to be associated with Brott, who was
sixty-three years old at the time. When police executed a search warrant for Brott’s
home, they discovered dozens of images on Brott’s electronic devices depicting
children between the ages of ten and fifteen years old engaged in or simulating
sexual acts. In speaking with police, Brott “‘was adamant that any images or

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2021AP2001-CR

Internet search history regarding pornography [were] his’” and not his wife’s or
anyone else’s.

¶4 The State charged Brott with ten counts of possession of child
pornography. In exchange for Brott’s guilty plea to one count, the State agreed to
dismiss and read in the nine remaining counts. The circuit court accepted Brott’s
plea, but prior to sentencing, he moved the court to set aside WIS. STAT.
§ 939.617(1)’s mandatory minimum sentencing provision on the grounds that the
child pornography possession statute, WIS. STAT. § 948.12(1m), says that violators
“may be penalized” rather than “shall” be penalized, which he claimed created an
ambiguity as to whether the circuit court retains sentencing discretion despite
§ 939.617’s mandatory minimum sentencing requirement. Brott also argued that
the rule of lenity should be employed to interpret the allegedly ambiguous
sentencing provision in his favor and that inconsistent application of the sentencing
provisions around the state have led to “a significant equal protection problem[.]”

¶5 The circuit court rejected Brott’s arguments, determining that State v.
Holcomb, 2016 WI App 70, 371 Wis. 2d 647, 886 N.W.2d 100, was “on point and
controlling.” That case, the circuit court said, requires imposition of the
three-year mandatory minimum initial confinement sentence set forth in WIS. STAT.
§ 939.617 unless—and only unless—an age-related exception (for which Brott did
not qualify) applied. The circuit court further characterized § 939.617 as “not an
ambiguous statute” and therefore determined that the “rule of lenity does not apply.”
Finally, the circuit court rejected Brott’s equal protection claim. In imposing
sentence, the circuit court stated:

[T]his is one of those situations where again, the
legislature has curbed my discretion, has told me I must
impose a bifurcated sentence with an initial term of
confinement, the minimum of 3 years. But when I

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No. 2021AP2001-CR

factor in your willingness to do treatment, when I factor
what your attorney has described, right? The totality of
who you are, the holistic view of who you are, I do not
believe there needs to be more than 3 years of initial
confinement.
I think 3 is appropriate. It is the mandatory
minimum.

¶6 Brott appeals, renewing his argument that there is an irreconcilable
conflict between the relevant statutes and his assertion that an inconsistent
application of WIS. STAT. § 939.617 throughout the state violates his right to equal
protection under the law. He contends that the circuit court “likely would have
imposed a lower sentence if not for its finding that the mandatory minimum …
applied to this case[,]” and he seeks a remand for resentencing with instructions to
disregard § 939.617(1).2

II. STANDARD OF REVIEW

¶7 This case presents a question of statutory interpretation and the
application of law to undisputed facts, which we review de novo. State v. Lickes,
2020 WI App 59, ¶16, 394 Wis. 2d 161, 949 N.W.2d 623. We interpret statutes
using the well-established methodology articulated in State ex rel. Kalal v. Circuit
Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110.
“[S]tatutory language is interpreted in the context in which it is used; not in isolation

2
Brott suggests that “rather than reading the tea leaves to divine the intent of the
legislature,” we should instead simply “set[] aside WIS. STAT. § 939.617 regarding convictions
under WIS. STAT. § 948.[1]2” because “the doctrine of separation of powers demands a legislative
solution rather than a judicial one.” Brott’s suggestion is a nonstarter because statutory
interpretation is a task that appellate courts regularly undertake. Indeed, there would be no need
for an extensive interpretive framework such as that set forth in the well-known—and oft cited and
applied—State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, 271 Wis. 2d 633, 681
N.W.2d 110, if statutory interpretation did not fall within the judiciary’s ambit. We therefore
decline Brott’s invitation to refrain from interpreting § 939.617 and reject his request to instead
simply disregard it.

4
No. 2021AP2001-CR

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. Our
purpose “is to determine what the statute means so that it may be given its full,
proper, and intended effect.” Id., ¶44. We therefore “begin[] with the language of
the statute[,]” and if the meaning of the text is plain, we go no further. Id., ¶45
(quoted source omitted). However, statutory history—“the previously enacted and
repealed provisions of a statute”—may be “part of a plain meaning analysis.”
Richards v. Badger Mut. Ins. Co., 2008 WI 52, ¶22, 309 Wis. 2d 541, 749 N.W.2d
581.

¶8 Where it is necessary to address the interplay between multiple
statutes, as it is in this case, we must remember that “[u]nder the ordinary rules of
statutory interpretation[,] statutes should be reasonably construed to avoid conflict.”
State v. Szulczewski, 216 Wis. 2d 495, 503, 574 N.W.2d 660 (1998). “When two
statutes conflict, a court is to harmonize them, scrutinizing both statutes and
construing each in a manner that serves its purpose.” Id. (citation omitted). Where
two statutes relate to the same subject matter, the rule of statutory construction in
Wisconsin “is that the specific statute controls over the general statute.” Gottsacker
Real Est. Co. v. DOT, 121 Wis. 2d 264, 269, 359 N.W.2d 164 (Ct. App. 1984).

¶9 With respect to Brott’s equal protection argument, we review equal
protection challenges de novo. See State v. Clappes, 136 Wis. 2d 222, 235, 401
N.W.2d 759 (1987). “When considering an equal protection challenge that does not
involve a suspect classification[,] ‘the fundamental determination to be made … is
whether there is an arbitrary discrimination in the statute or its application, and thus
whether there is a rational basis which justifies a difference in rights afforded.’”
State v. Ruesch, 214 Wis. 2d 548, 564, 571 N.W.2d 898 (Ct. App. 1997) (omission
in original; citation omitted). Brott’s burden of establishing a constitutional

5
No. 2021AP2001-CR

violation is a high one. See State v. Lindsey, 203 Wis. 2d 423,
442-44, 554 N.W.2d 215 (Ct. App. 1996); Oyler v. Boles, 368 U.S. 448, 456 (1962).

III. DISCUSSION

¶10 This case involves two statutes related to possession of child
pornography. The first, WIS. STAT. § 948.12, defines the crime of possession of
child pornography and identifies the degree of felony resulting from its violation:

(1m) Whoever possesses, or accesses in any way with the
intent to view, any … photograph … of a child engaged in
sexually explicit conduct under all of the following
circumstances may be penalized under sub. (3):

(a) The person knows that he or she possesses or has
accessed the material.

(b) The person knows, or reasonably should know, that the
material that is possessed or accessed contains depictions of
sexually explicit conduct.

(c) The person knows or reasonably should know that the
child depicted in the material who is engaged in sexually
explicit conduct has not attained the age of 18 years.

….

(3) (a) Except as provided in par. (b), a person who violates
sub. (1m) or (2m) is guilty of a Class D felony.

(b) A person who violates sub. (1m) or (2m) is guilty of a
Class I felony if the person is under 18 years of age when the
offense occurs.

Sec. 948.12. The second, WIS. STAT. § 939.617, mandates certain penalties for
§ 948.12 violations. Section 939.617 states, as relevant:

(1) Except as provided in subs. (2) and (3), if a person is
convicted of a violation of s. … 948.12, the court shall
impose a bifurcated sentence under s. 973.01. The term of
confinement in prison portion of the bifurcated sentence
shall be at least … 3 years for violations of s. 948.12.

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No. 2021AP2001-CR

Sec. 939.617.3

¶11 Brott argues that WIS. STAT. §§ 948.12 and 939.617 are
“irreconcilable” with one another because the “may be penalized” language used in
§ 948.12(1m) renders the “shall impose” language used in § 939.617(1) ambiguous
and unenforceable. Stated differently, the crux of Brott’s argument is that an
irreconcilable conflict arises because, he says, § 948.12(1m) provides circuit courts
with the option of imposing a bifurcated sentence for convictions for possession of
child pornography because that statute uses the word “may,” whereas § 939.617
requires a circuit court to impose a bifurcated sentence because it uses the word
“shall.” This, according to Brott, ultimately “renders [§ 939.617] ambiguous”
because “it is capable of being understood by reasonably
well-informed persons in two or more senses” in light of § 948.12. The State
disagrees. It argues that Brott has been convicted of violating § 948.12 by
possessing child pornography and that the plain meaning of § 939.617 required the
circuit court to impose a bifurcated sentence with a three-year minimum term of
initial confinement. The State’s interpretation is correct.

¶12 As with every statutory interpretation case, we begin with the
statutory text. Kalal, 271 Wis. 2d 633, ¶45. Because this case requires that we
determine whether two statutes are “irreconcilable” with each other, we must begin
by first determining the plain meaning of each. Only once we have determined what
each statute means standing alone can we then determine whether, when read
together, the statutes are irreconcilable or in any way ambiguous.

3
WISCONSIN STAT. § 939.617 allows the circuit court limited discretion to impose a lesser
sentence under the age-related circumstances not relevant here.

7
No. 2021AP2001-CR

¶13 We begin with WIS. STAT. § 948.12, the possession statute. As set
forth above, § 948.12 identifies both the elements of possession of child
pornography and the felony classifications that apply under certain conditions.
More specifically, it states that anyone who violates § 948.12(1m) “may be
penalized under sub. (3)[,]” which in turn identifies the age-related circumstances
under which an offender is guilty of a Class D or Class I felony for possession of
child pornography. Brott asserts that use of the word “may” in § 948.12(1m) means
that a circuit court “is given the discretion to impose a bifurcated sentence[.]” Brott
is wrong.

¶14 Although the word “may” typically “creates a presumption that the
statute is permissive[,]” “[t]his general principle can be rebutted if construing ‘may’
as mandatory is necessary to reflect legislative intent.” McGuire v. McGuire, 2003
WI App 44, ¶26, 260 Wis. 2d 815, 660 N.W.2d 308; see also Heritage Farms, Inc.
v. Markel Ins. Co., 2012 WI 26, ¶32, 339 Wis. 2d 125, 810 N.W.2d 465. Applying
this general principle to WIS. STAT. § 948.12, it is clear that “may” is mandatory as
used in the possession statute because construing it otherwise would lead to
unreasonable results and defy the clear legislative intent. This is so because
§ 948.12 is an elements and classification statute. It defines the crime of possession
of child pornography, sets forth the elements that comprise the crime, and identifies
the applicable class of felony for violations. The “may” language at issue relates
specifically to the felony classification portion of § 948.12: whoever violates the
possession statute “may be penalized under sub. (3)[,]” which sets forth two distinct
felony classifications—Class D (paragraph (3)(a)) or Class I “if the person is under
18 years of age when the offense occurs” (paragraph (3)(b)). Id. The word “may”
therefore does not mean that the circuit court has the option of whether to sentence
a violator under subsection (3) or whether to impose a bifurcated sentence, as Brott

8
No. 2021AP2001-CR

suggests, but rather identifies which of the two felony classifications applies to the
violation at hand: Class D or Class I. That classification, in turn, sets forth the
penalties for each class of felony. See WIS. STAT. § 939.50(3).

¶15 To construe the word “may” as used in WIS. STAT. § 948.12 otherwise
would defy logic and lead to an unreasonable result. For example, if the word “may”
meant that a circuit court had discretion as to whether or not an offender would be
penalized under § 948.12(3)’s felony classifications or whether an offender was
subject to a bifurcated sentence, the court could simply determine that a convicted
offender was guilty of a different felony classification with different maximum
penalties or even that a convicted offender was not guilty of a felony at all. This
would be unreasonable given that the legislature has specifically identified two—
and only two—felony classifications that apply dependent upon the offender’s age
at the time of the offense. Sec. 948.12(3). Indeed, if a circuit court had the
discretion Brott believes § 948.12 provides, it would have been unnecessary for the
legislature to identify the felony classifications that apply for possession of child
pornography at all.

¶16 The statutory history confirms that use of the word “may” relates to
the applicable felony classification for WIS. STAT. § 948.12 violations rather than to
the circuit court’s discretion (or lack thereof). The § 948.12 language at issue
here—the word “may” and the corresponding felony classifications that follow—
has been in effect since June 2006 when the legislature added subsection (3) and
revised subsection (1m). 2005 Wis. Act 433, §§ 23-25 (“Act 433”). Prior to these
revisions, subsection (1m) stated that a person possessing child pornography “is
guilty of a Class I felony[.]” 2005 Wis. Act 433, § 23; § 948.12(1m) (2003-04).
Thus, Act 433 removed “is guilty of a Class I felony” and replaced it with “may be
penalized under sub. (3)[,]” which identifies the circumstances under which a

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No. 2021AP2001-CR

violation is a Class D felony or a Class I felony. 2005 Wis. Act 433, §§ 23, 25. This
amendment, which changed possession of child pornography as defined in § 948.12
from a Class I felony for everyone to a Class D felony for everyone over eighteen
years old, clearly shows the textual change was to increase the criminal penalty for
some (but not all) individuals—not to provide a circuit court with newly unbridled
sentencing discretion.

¶17 Simply put, when the legislature eliminated the single classification
for WIS. STAT. § 948.12 violations that previously existed in favor of the double
classification—one for adults (Class D) and one for child offenders (Class I)—it
needed to amend the “is guilty of a Class I felony” language that previously existed.
See § 948.12(1m) (2003-04). It did so by adding the “may be penalized” language
currently found in § 948.12(1m), which alerts the public that the felony
classification for possession of child pornography subsequent to Act 433’s
enactment will depend upon the offender’s age. The “may be penalized” language
is therefore unambiguous as it simply addresses the new double classification, and
it does not provide a circuit court with the discretion Brott suggests.

¶18 Having determined the plain meaning of WIS. STAT. § 948.12(1m),
we next turn our attention to WIS. STAT. § 939.617, which is neither an elements nor
a classification statute but rather a mandatory minimum statute. On its face,
§ 939.617 unambiguously requires imposition of a mandatory minimum: a circuit
court “shall impose a bifurcated sentence under s. 973.01” for violations of § 948.12
unless specific exceptions related to the offender’s age apply. Sec. 939.617; see
Holcomb, 371 Wis. 2d 647, ¶15 (“WISCONSIN STAT. § 939.617 has a plain and
unambiguous meaning.”).

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No. 2021AP2001-CR

¶19 When construing statutes, we generally “presume that the word ‘shall’
is mandatory[,]” Heritage Farms, Inc., 339 Wis. 2d 125, ¶32, and here, the word
“shall” can mean only one thing: that “the circuit court is required to … impose a
bifurcated sentence” for violations of WIS. STAT. § 948.12 unless one of WIS. STAT.
§ 939.617’s age-related exceptions applies. See, e.g., State v. Shirikian, 2023 WI
App 13, ¶25, 406 Wis. 2d 633, 987 N.W.2d 819. This is the only reasonable
interpretation because if “shall” did not require a circuit court to impose a bifurcated
sentence—which is a sentence consisting of an initial term of confinement of at least
one year in prison followed by a term of extended supervision as set forth in WIS.
STAT. § 973.01—for such violations, there would be no need for the statute to also
identify the limited age-related exceptions to the mandatory minimum bifurcated
sentence requirement.

¶20 As with WIS. STAT. § 948.12, the relevant statutory history again
confirms this understanding of WIS. STAT. § 939.617. The legislature created
§ 939.617 in June 2006 at the same time it amended § 948.12(1m) to include
§ 948.12(1m)’s “may be penalized” language and the two (as opposed to the prior
one) felony classifications. 2005 Wis. Act 433, §§ 15, 23, 25. At the time of its
creation, § 939.617 imposed a presumptive minimum sentence. 2005 Wis. Act 433,
§ 15. It stated: “Except as provided in subs. (2) and (3), if a person is convicted of
a violation of … [§] 948.12, the court shall impose a bifurcated sentence under
s. 973.01[, and] [t]he term of confinement in prison portion of the bifurcated
sentence shall be at least … 3 years for violations of s. 948.12.” 2005 Wis. Act 433,
§ 15. The referenced exceptions provided that “the court may impose a sentence
that is less than the sentence required under sub. (1), or may place the person on
probation, only if the court finds that the best interests of the community will be
served and the public will not be harmed and if the court places its reasons on the

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No. 2021AP2001-CR

record” and that the statute did not apply at all if the offender was less than eighteen
years old at the time of the offense. 2005 Wis. Act 433, § 15. Accordingly, when
it enacted Act 433, the legislature granted circuit courts sentencing discretion under
the presumptive minimum statute.

¶21 Given that the legislature added WIS. STAT. § 948.12(1m)’s “may be
penalized” language at the same time it created WIS. STAT. § 939.617’s previous
presumptive minimum, it would have been unnecessary for the legislature to
provide circuit courts with sentencing discretion under § 939.617 if § 948.12’s “may
be penalized” language already did so. This statutory history confirms that use of
the word “may” in § 948.12 has nothing to do with circuit courts’ discretion at all.
Moreover, when the legislature later removed the circuit courts’ sentencing
discretion when it amended § 939.617 in April 2012 and made the three-year
minimum mandatory in all but very specific age-related circumstances instead, see
2011 Wis. Act 272, §§ 1m and 1p, it was already aware of § 948.12(1m)’s “may be
penalized” language. See State v. Trongeau, 135 Wis. 2d 188, 192, 400 N.W.2d 12
(Ct. App. 1986) (“When the legislature enacts a statute, it is presumed to act with
full knowledge of the existing laws, including statutes.”). Thus, § 948.12(1m)’s
“may be penalized” language—particularly when viewed in light of 2005 Wis. Act
433—cannot be interpreted as providing circuit courts with sentencing discretion
for § 948.12 violations in the first place.

¶22 Having construed the two statutes at issue, we conclude neither is
ambiguous nor irreconcilable, and we reject Brott’s attempt to merge the two
statutes to create ambiguity. Brott’s interpretation would require sentencing courts
to blatantly disregard the legislature’s direct instruction to impose a mandatory
minimum sentence in all but limited age-related circumstances—an unreasonable
result. See Kalal, 271 Wis. 2d 633, ¶46 (we interpret statutes “reasonably, to avoid

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No. 2021AP2001-CR

absurd or unreasonable results”). Our plain meaning interpretation results in both
statutes working harmoniously together in setting the parameters for the punishment
for the crime of possession of child pornography: one (WIS. STAT. § 948.12) sets
forth the maximum allowable sentence based on the applicable felony classification,
and the other (WIS. STAT. § 939.617) sets forth the minimum allowable sentence for
possession of child pornography.4 Because it is possible to comply with both
statutes, §§ 948.12 and 939.617 are not in conflict. See, e.g., State v. Grandberry,
2018 WI 29, ¶21, 380 Wis. 2d 541, 910 N.W.2d 214 (“In order for two statutes to
be in conflict, it must be impossible to comply with both.”). Brott’s assertion that
§ 948.12 renders § 939.617 ambiguous therefore lacks merit.

¶23 As a final note, the cases Brott relies on do not compel a different
result. Although Brott is correct that Holcomb does not address the precise
argument he makes here, our statutory analysis of WIS. STAT. § 939.617 in Holcomb
is entirely consistent with our rejection of Brott’s proposed interpretation. In that
case, Holcomb argued that we should interpret § 939.617 as allowing a circuit court
to depart from the mandatory minimum sentence in any case in which the court
found it in the “best interests of the community” because, he asserted, the age-
related exceptions in subsections (2) and (3) related only to placing a person on
probation. See Holcomb, 371 Wis. 2d 647, ¶¶6-7. This court determined that the
statutory text and structure did not support Holcomb’s interpretation. Id., ¶15. As
we stated, § 939.617 “has a plain and unambiguous meaning[,]” which is that the

4
To the extent WIS. STAT. § 948.12 itself does not directly state that a circuit court must
impose a bifurcated sentence, there still remains no conflict between § 948.12 and WIS. STAT.
§ 939.617 because WIS. STAT. § 973.01 requires imposition of a bifurcated sentence for felony
convictions.

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No. 2021AP2001-CR

circuit court has discretion to depart from the statutory mandatory minimum
sentence for WIS. STAT. § 948.12 violations only when the defendant meets the age-
related criteria of subsections (2) and (3).5 Holcomb, 371 Wis. 2d 647, ¶15.
Consequently, if those exceptions do not apply, the circuit court does not have
discretion as to the mandatory minimum, which is the same conclusion we reach
here.

¶24 State v. Lalicata, 2012 WI App 138, 345 Wis. 2d 342, 824 N.W.2d
921, and State v. Williams, 2014 WI 64, 355 Wis. 2d 581, 852 N.W.2d 467, do not
disturb the harmony between WIS. STAT. §§ 939.617 and 948.12. In Lalicata, this
court held that probation was not available as a penalty for a crime (in Lalicata’s
case, first-degree sexual assault of a child) that carried a statutory minimum
sentence of imprisonment. Lalicata, 345 Wis. 2d 342, ¶¶14-15. Lalicata thus
instructs that when a specific statute requires a circuit court to impose a bifurcated
sentence including a mandatory minimum term of confinement, the court cannot
stay the sentence and place a person convicted of that crime on probation. Id.; see
also Shirikian, 406 Wis. 2d 633, ¶¶1-2.

¶25 As for Williams, Brott emphasizes the fact that in that case, our
supreme court found statutory language stating that “[t]he confinement portion of a
bifurcated sentence imposed on the person [convicted of a seventh OWI offense]
shall be not less than 3 years” was ambiguous as to whether it required the circuit
court to impose a bifurcated sentence or instead required it to impose a minimum
only if it imposed a bifurcated sentence in the first instance. Williams, 355 Wis. 2d
581, ¶21 (emphasis added; quoting WIS. STAT. § 346.65(2)(am)6

5
We reaffirm our determination in Holcomb that the lack of ambiguity in WIS. STAT.
§ 939.617 means the rule of lenity does not apply. State v. Holcomb, 2016 WI App 70, ¶15 n.4,
371 Wis. 2d 647, 886 N.W.2d 100.

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No. 2021AP2001-CR

(2009-10)). Despite the ambiguity, however, the Williams court concluded that the
statute at issue required imposition of a bifurcated sentence. Williams, 355 Wis. 2d
581, ¶47. In reaching that conclusion, it provided an example of how “a statute that
clearly imposed a mandatory minimum sentence might” be drafted: “The court
shall impose a bifurcated sentence under s. 973.01, and the term of initial
confinement shall be not less than three years.” Williams, 355 Wis. 2d 581, ¶21.
WISCONSIN STAT. § 939.617 follows precisely that structure: “[T]he court shall
impose a bifurcated sentence under s. 973.01” and “[t]he term of confinement in
prison portion of the bifurcated sentence shall be at least … 3 years[.]” Sec.
939.617(1).

¶26 In summary, interpreting the statutes as Brott urges would require us
to depart from the plain meaning of the text—whether read independently or
together. It would also frustrate WIS. STAT. § 939.617’s purpose by undermining
the legislature’s goal of ensuring that those convicted of possessing child
pornography in violation of WIS. STAT. § 948.12 serve at least three years in
prison—which is something we will not do. See State v. Dinkins, 2012 WI 24, ¶29,
339 Wis. 2d 78, 810 N.W.2d 787 (“An interpretation that contravenes the manifest
purpose of the statute is unreasonable.”). Accordingly, we conclude that the circuit
court did not err in imposing § 939.617’s three-year mandatory minimum following
Brott’s guilty plea to one count of possession of child pornography contrary to
§ 948.12(1m). The circuit court properly interpreted the statutes and imposed the
correct sentence.

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No. 2021AP2001-CR

¶27 This brings us to Brott’s equal protection argument. “Both the
Fourteenth Amendment to the United States Constitution[6] and article I, section 1
of the Wisconsin Constitution[7] guarantee equal protection of the laws and afford
substantially the same protections.” State ex rel. Harr v. Berge, 2004 WI App 105,
¶5, 273 Wis. 2d 481, 681 N.W.2d 282. Although “[e]qual protection guarantees
that similarly-situated persons are treated similarly[,]” it “does not require that all
persons be dealt with identically, but [rather] … that a distinction made have some
relevance to the purpose for which the classification is made.” Id. (quoted source
omitted). “[W]here a statutory classification does not involve a suspect class or a
fundamental interest, the classification will be upheld if there is any rational basis
to support it.” Id.

¶28 Brott’s equal protection argument amounts to an as-applied challenge
asserting that WIS. STAT. § 939.617 violates his equal protection rights because
some circuit courts throughout the state have purportedly failed to impose
§ 939.617’s mandatory minimum in imposing sentence, whereas the circuit court in
his case did apply the mandatory minimum. Even accepting Brott’s assertion that
some circuit courts have failed to apply § 939.617’s mandatory minimum such that
offenders in some counties have not been subjected to the mandatory minimum
sentence while offenders in other counties have been, that some courts have failed
to impose a lawfully required sentence in accordance with § 939.617’s mandatory
minimum does not give rise to an equal protection claim when a court—such as the
one here—does impose a sentence that is in accordance with the law.

6
U.S. CONST. amend. XIV.
7
WIS. CONST. art. I, § 1.

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No. 2021AP2001-CR

¶29 Moreover, the United States Supreme Court rejected a similar
argument in Oyler, in which the Court concluded that selective enforcement of a
law was “not in itself a federal constitutional violation” and noted that “[e]ven
though the statistics … might imply a policy of selective enforcement, it was not
stated that the selection was deliberately based upon an unjustifiable standard such
as race, religion, or other arbitrary classification.” Oyler, 368 U.S. at 456. Here,
any failure to impose WIS. STAT. § 939.617’s mandatory minimum cannot be said
to be knowing and deliberate or even based upon an arbitrary classification but
rather is, at most, likely the result of an individual circuit court’s misinterpretation
of what § 939.617 requires. Brott has failed to establish the requisites for an equal
protection violation.

IV. CONCLUSION

¶30 The circuit court properly applied the law in sentencing Brott to three
years of confinement followed by two years of extended supervision because, in
doing so, it correctly interpreted and gave effect to both WIS. STAT. § 948.12, which
makes possession of child pornography a felony and identifies the corresponding
category of felony, and WIS. STAT. § 939.617, which dictates the mandatory
minimum sentence for that crime. There is no conflict between these statutes, and
there is likewise no ambiguity that renders these statutes irreconcilable. The circuit
court therefore properly rejected Brott’s request that it disregard § 939.617’s plain
dictate requiring a mandatory minimum. We also conclude that Brott has failed to
establish an equal protection violation; his assertion that a different circuit court
failed to impose the lawfully required sentence is insufficient. We therefore affirm
the judgment of the circuit court.

By the Court.—Judgment affirmed.

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No. 2021AP2001-CR

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