COA reverses sentencing court’s order de facto terminating defendant’s parental rights
State v. Dominic L. Brister, 2024AP1516-CR, 6/30/26, District I (recommended for publication); case activity
COA issues a broad defense win, holding that the First Amendment forbids the extreme no-contact order entered in this case.
Brister resolved two cases with a global plea agreement. (¶3). The circuit court imposed a global sentence of “eleven years’ imprisonment, equally divided between confinement and extended supervision.” (¶4). As part of its sentence, the court ordered that Brister have no-contact with his minor child (who was in the backseat of the car, unsecured, while he drove drunk and possessed an illicit firearm) for the entirety of that 11 year sentence. (¶5). Brister unsuccessfully moved for postconviction relief and now appeals to COA.
In a footnote, COA first disposes of the State’s forfeiture argument, holding that even though Brister’s arguments are “considerably more detailed and refined on appeal, he did not fail to raise the issue before the circuit court.” (¶9 n.3).
Moving to the merits, COA acknowledges that sentencing courts have broad discretion in imposing conditions of extended supervision. (¶12).
Note: Here, the court’s order goes beyond extended supervision and also limits Brister’s ability to contact his child while serving his initial confinement pursuant to § 973.049(2). The parties agree that the line of cases interpreting the court’s ES authority also apply in this context.
Even conditions that impinge on a constitutional right are usually subject only to a broad “reasonableness” assessment. (¶14). Some constitutional rights, however, are different. Thus, State v. King establishes that a content-neutral condition which restricts a defendant’s First Amendment rights is subject to intermediate scrutiny on appeal. (¶19). COA synthesizes a series of SCOTUS cases as standing for the proposition “that the sentencing condition in this case prohibiting all communication and contact between Brister and [the minor child] necessarily limits Brister’s First Amendment rights to develop a relationship with [his child] and direct her upbringing.” (¶21). The State is alarmed that such no-contact orders must satisfy this higher level of scrutiny, warning COA that its decision will “nullify” a broad swath of case law. (¶23). COA, however, refuses to credit the State’s argument that sky is falling and proceeds to evaluate this condition under this more intensive appellate review.
COA ultimately agrees with Brister that this order is not narrowly tailored and instead “overly broad and unreasonable . . . .” (¶28). For example, the length of the no-contact far exceeds the portion of the sentence actually applicable to the conduct involving the child. (Id.).
Brister’s case involving the minor child accounts for three years of the global sentence.
Careful readers might therefore be confused how the court can impose an order in that case forbidding contact for the duration of the entire 11-year global sentence. Only one of the two cases is appealed. The short answer is we don’t really know and COA doesn’t delve into this aspect of the facts; presumably this is another to be clarified on appeal.
This is an extreme restriction on Brister’s ability to have any contact with his child for almost her entire childhood and the court did not explain why such an extreme condition was warranted under these circumstances. (¶29). Moreover, COA is also mindful that this order effectively terminates Brister’s parental rights, a constitutionally significant act. (¶30). COA therefore remands “with directions to modify the no-contact order with regards to [the child] in a manner consistent with this opinion.” (¶31).
Given the tenor of the State’s arguments here, it’s obvious an equally fiery PFR is likely forthcoming. COA’s decision constitutionalizes the assessment of commonly imposed no-contact orders and subjects them to a more intense level of scrutiny on appeal. While COA cautions the reader that this is an extreme case and that it is not intending to open any floodgates, the decision breaks new ground in Wisconsin and is therefore probably headed to SCOW.