*1 Plaintiff-Respondent, Wisconsin, State
v. Defendant-Appellant. Dennis J. Kivioja, Supreme Court 97-2932-CR, Nos. Oral argument February 97 - 2933-CR. 4, 1999. May
1999. Decided (Also 220.) reported in 592 N.W.2d *3 by defendant-appellant For the there were briefs Sukowaty Sukowaty Mark Office, G. Law Madison argument by Sukowaty. G. oral Mark plaintiff-respondent argued For the the cause was by attorney general, Tarver, L. Sandra assistant with Doyle, attorney on whom the brief was James D. general. STEINMETZ, 1. DONALD W. J. These con-
solidated cases are before court on certification pursuant appeals, from the court of to Wis. Stat. (1997-98). (Rule) Defendant-appellant § 809.61 Henry appeals Buslee, B. the Honorable an order County Fond Lac Circuit Court. du certified, ¶2. case, is the The this as issue recan- in which circuit court should evaluate manner testimony it offered as new evidence tation when is plea prior support sen- a defendant's withdrawal tencing. issue, The immediate from the more defendant-appellant, perspective Dennis Kivi- of the J. oja, recantation of State's is whether his offer against primary him in the cases was a suffi- witness support just reason" his cient "fair and motion plea. his withdraw appeal This a consolidated two 1995 Kivioja charged in which was with crimes
cases involving burglary to a
and related matters. Pursuant pleas Kivioja agreement, entered no contest to five burglary party in each of the counts of to the crime of pri- two Less than two later the State's cases. weeks mary Jody witness, earlier, non- Stehle, recanted his implicating in the crimes to sworn statements Kivioja pled. Kivioja his which pleas, moved to withdraw evidentiary following hearing an
but wherein recanting time, under oath for the first Stehle testified against defendant, court accusations circuit appealed, The defendant and the denied motion. appeals issue this court of certified the described to court.
HH *4 evening July 6, 1995, an of 4. On the of officer County Department the du s Fond Lac Sheriff observed matching witness-provided description a vehicle spotted car had a home that that been near had been burglarized July vehicle, 3. the on The officer followed shortly stopped which thereafter. When officer explained identification, asked for the driver he that none, had but stated that his name L. was John Smith. passenger, Kivioja, The the defendant told the officer really Jody name driver's was Stehle. The determining upon officer arrested Stehle that he had Kivioja active for his two warrants arrest. was not arrested time. at that subsequently
¶ 5. Stehle to confessed sheriffs Kivioja together responsi- he detectives that were many burglaries County during in Fond ble du Lac previous In addition, two months. he told detectives Kivioja May burglary, 9, 1995, acted alone in a jail date on which he stated he himself had been in participated. and could have not initial this state- explained detectives, ment Stehle that he had Kivioja Kivioja spoken jail, from and that had admit- phone reported over the ted that he had stolen the $600 missing burglary. in the
¶ 6. In the officers' search of the vehicle which stopped, they Stehle and had been discovered reported numerous items which had stolen been from a July stop. home on the date In a search of Kivioja's apartment, officers found items four match- ing descriptions reported during of items stolen previous County months two from various Fond du Lac homes. The serial numbers ofthe two electronic devices found had been removed. Together statements, with Stehle's this evi- support probable
dence was used cause portion complaint Kivioja's of the criminal which led to charged July 10,1995, arrest on when he was with five contrary party burglary, to the crime of counts 943.10(l)(a). §§ Stat. Wis. 939.05 and *5 prosecutor July an ¶ 1995, the filed party 13, On 8. charging to the five counts of information same charged burglary, five of and also counts the crime of contrary party Stat. theft, of to Wis. to the crime 943.20(l)(a), party §§ the counts of to and five 939.05 damage contrary property, to to crime of criminal 943.01(1), jump- §§ and five counts of bail and 939.05 946.49(l)(b), ing, contrary § to Stat. to which Wis. guilty. pleas of entered not defendant complaint against Kivioja ¶ A criminal 9. second charging him 6,1995, with was served on November burglary party of and counts of to crime additional burglary, party attempted to the crime of one count contrary 943.10(l)(a). §§ 939.32, and 939.05, to Stat. Wis. complaint, probable
As in the earlier portion complaint part in on cause of this was based Kivioja in the was involved Stehle's statement Kivioja burglaries. 1995, his 1, On December waived regard preliminary hearing complaint this to second Kivioja pleas February 1996, 5, and on entered of not guilty all 17 of the counts. August 14,1996, State, on 10. On motion joined they later cases were sched- two were 2, 1996, an trial. The trial was never
uled for October Kivioja plea. held, however, to enter a At his as decided hearing, Kivioja agreed plead 3, 1996, October party no contest to counts to the crime of bur- five glary party case, in the and five counts of to the first burglary exchange case, in the for crime of second remaining charges, the dismissal of the which were sentencing. Sentencing purposes be read in for the was scheduled a later date. During 15 months between Stehle's Kivioja's plea, against case
arrest State's Following July progressing. 6, Stehle also was arrest, Stehle was held in the du Lac Fond County jail. point, At one when both he and *6 requested explain- there, held transfer, were Stehle ing attorney Kivioja his to had him threatened and safety. request that he was concerned for his The was met and Stehle transferred was to the Lake Green County jail, returning County jail to the Fond du Lac only Kivioja longer after was no there.1 nearly year
¶ 12. 17,1995, On October one before Kivioja plea agreement, reached his Stehle reached his plea agreement pursuant own with the State to which pled Stehle no of contest to ten the counts with which charged agreed testify Kivioja's he was and to to burglaries exchange involvement in the in for which charges against the additional him would be dismissed purposes and were to be read into the record for the sentencing agreement pro- and The restitution. further vided that both Stehle and the State would ask delay sentencing to court pletion Kivioja's Stehle's until after the com- case. Following prior ¶ 13. conviction, his Kivi- but to oja's reaching request case conclusion, his Stehle's attorney requesting filed a number of motions that the September circuit In 1996, court sentence him. con- just trary agreement to his own with the State and prior Kivioja's agreement, weeks to own the circuit years prison court sentenced Stehle to a total in 10,1995, subsequent July The record discloses to his arrest, prior complaint to the second criminal in served 1995, Kivioja November was sentenced to the Prison Wisconsin System following degree his conviction of second sexual assault in subject appeal. Kivioja a crime -unrelated to those to this was County jail prior being held in the Fond du to to Lac sentenced System. Prison Wisconsin pay years probation him to more ordered and ten $13,000 than restitution. 1996, less than two weeks 14. On October
. Kivioja's 15-page pleas, following létter Stehle wrote Kivioja recanting was his earlier statements Kivioja pled burglaries no had for which involved investigator in This was addressed an contest. letter employ Kivioja's the letter who then directed Kivioja. he had recantation, Stehle wrote that his Kivioja had them that
lied detectives when he told burglaries. expla- He in the offered two been involved incriminating First, nations for statements. he. placing blame for that he had believed that wrote burglaries away suspicion from on would shift *7 he Second, he wrote he had lied because himself. that Kivioja given upset Stehle's had the officers was identity directly He led to his arrest. further true which Kivioja explained him had never been with when burglaries. he had committed Kivioja's investiga- separate letter may expressed as tor, what be characterized Stehle anger response in he had received: to the sentence probation
[T]hey gave years years me 20 with pay and ordered me to around consecutive restitution,- $13,200.00 I worth of told on again If I I'll myself. get anymore eve[r] into trouble They kiss dick. cops my know how to tell again, speaking not even think of to me all better of, 'Oh, get easy promises you'll [sic] their shit,' it was all bullshit. signed 23, 1996, Stehle a sworn statement
On October reaffirming his recantation. Kivioja
¶ 17. recantation, Once learned he attorney2 January who, obtained an on 15,1997, filed a Kivioja's plea. motion and affidavit to withdraw The accompanied part which affidavit motion stated plea that the defendant had entered a because he knew going implicate burgla- that Stehle was him in [criminal] ries, and he had believed that due to his own jury protestations record, a would not have believed his explained of innocence. He further that he had entered to reduce the maximum amount oftime he would be incarcerated. April
¶ 18. 10, 1997, On the circuit court held an evidentiary hearing Kivioja's on motion. The defendant explained moving that his reason for to withdraw his pleas proceed and instead trial with was based exclu- sively on the new evidence that Stehle had recanted his implicating earlier statement him.3 When asked prosecutor any upon if he had other evidence which his Kivioja replied based, motion was that he did not. explain he While did that he had some evidence that testimony would have Kivioja trial, contradicted Stehle's clarify did not found when he this evidence. We parties motion, read as the circuit court and the supported exclusively have, as one with Stehle's recantation. testimony large part
¶ 19. Stehle's was in accord with his letter of recantation, and he stated Kivioja any numerous times was not involved in burglaries pled to which had no contest. As *8 statements, motive his earlier Stehle testified that 2 Kivioja's attorney This retention in was third these consol idated cases. 3 newly A recantation is considered discovered evidence. Co., See Dunlavy Dairyland Mut. 105, 114 n.2, v. 2d Ins. Wis. 73 (1963). 124 N.W.2d Kivioja provided upset the that had
he had been that real name and identification officers with Stehle's knowing that He further testified had led to his arrest. Kivioja's posses- in that some of the stolen items were wrongly implicate sion, was certain that he could he Kivioja. testimony Kivioja eliciting Stehle's that burglaries, Kivioja's counsel involved the
was not with specific questions respect with to the asked Stehle burglarized, a task with items taken from the homes difficulty, attributing vague his which Stehle had some passage to of time. At one memories of the matter point testimony, during the circuit court Stehle's difficulty acknowledged deciphering in Stehle's its own vaguely "Everything answers is answers: he years ago, couple not doesn't remember and but he's any put my making profound I can hat statements that Kivioja's attorney responded profound that on." testimony Kivioja was the that was not with statement any of Stehle at the time of the crimes. prosecutor ques- cross-examination, 21. On length regarding one
tioned Stehle at some implicated particular crime in had earlier which Stehle Kivioja being solely responsible. above, in as As noted officers, his Stehle had initial statement stated jail, Kivioja tele- while he was in admitted over the phone [Kivioja] burglary in he committed the had hearing, At the Stehle which cash was taken. $600 had testified that fact not committed burglary crime, himself he had committed but jail; day by just prior going i.e., it did earlier himself. pointed prosecutor
¶ 22. The then out an incon- testimony sistency and his between written prosecutor The recantation letter October 1996. *9 noted in statement, that the written Stehle claimed Kivioja burglary that neither he nor committed the in question, attributing that crime to an unnamed third person. prosecutor The read from Stehle's written statement:
Question: Dennis also didn't do that six hun-
dred dollar and I burglary, was not jail. jail A check with the con- should Oh, firm this. What is that word? but also didn't do—but also I do didn't burglary, is that right? Answer: Yeah.
Question: I later learned who did it I though.
remember me and Dennis were out job hunting day on the that I later guy learned from the who this did burglary, places one we out stopped out —was in Marytown area, which my is also to the best of memory the area where this burglary occurred. confronting
In addition to with Stehle this inconsis- tency prosecutor recantations, within his also explain Kivioja asked Stehle fear he had of while being County jail. the two were held the Fond du Lac explained attorney get Stehle that when he his told (the away Kivioja him from he fear was not in made), request reason for his at the time rather but against Kivioja stronger. was an effort to make the case Finally, prosecutor elicited from Stehle although jailed through he was from June 1995 his sentencing September 1996, was not until after it 20-year Stehle received his sentence he found it necessary to recant initial statement. reaching
¶23. decision, the circuit Prior its *10 portion of letter the record that Stehle's court read into anger expressed he he with the sentence in which had Stehle, court also found that had received. The statement, many [written] shows so along with his inconsistencies, reliability and credi- marked challenged. He has bility seriously of the witness is recollections, testifies that he served some vague they together some time in passed time or least before, the prison, pointed testimony as I out reason, just as here is the fair and and Mr. Nesmith brief, prior the the of a points out in recantation can contain sufficient facts and reasons statement for satisfy requirement corroboration the to recantation.... burglary "the
The
also found that
various acts of
court
supposedly by
[sic]
Stehle,
himself, are
committed in
completely
uncorroborated
unsubstantiated."
Kivioja's
court
denied
24. The circuit
then
transcript
hearing together
motion. The
from
with
cir-
order which followed disclose that the
written
applied the facts of the case
two distinct
cuit court
to
a
first,
tests:
the circuit court identified that
with-
any
sentencing
granted
prior
drawal
should be
just
noting
Second,
"fair and
reason."
that the reason
support
in
of his motion was new
defendant offered
recantation,
in
form of
the circuit
evidence
court
appeals'
identified as relevant the court of
discussion
McCallum,
149,
v.
198 Wis. 2d
4 McCallum, upon The circuit court relied State v. 198 Wis. 1995). (Ct. 149, App. Approximately 2d 184 one 542 N.W.2d order, court, in written State month after circuit court's this McCallum, (1997), v. 2d 707 affirmed 208 Wis. N.W.2d plea following sentencing, upon draw based depended part upon recantation, "whether or not jury opposed could believe the recanted statement as original denying statement." In its order written withdraw, the motion to the court wrote: jury 1. a reasonable would not believe recanting accomplice Jody Stehle; statement of 2. Jody there corroboration no Stehle's
recantation; the defendant has failed to present fair and withdrawing pleas. reason for April On the circuit years probation 23,1997, court sentenced years and ten in accordance with *11 Kivioja's plea agreement. Kivioja appealed appeals
¶ 25. and the court of question, requesting certified the clarification assessing test circuit courts use in a should the use of plea prior sentencing. recantation in a withdrawal
I—IhH seeking plea ¶ 26. A defendant to withdraw a guilty sentencing or no contest before must show that just allowing is a reason," there "fair and for him or her plea. State, 121, to withdraw the Libke v. 60 Wis. 2d (1973). 128, 208 a N.W.2d 331 Should defendant make part part appeals' and reversed in the court of decision. That part of the set appeals legal court of decision which forth the standard which the circuit court is to determine whether supports plea following recantation a motion to withdraw sentencing Our was affirmed. discussion which refers to McCol- refers explicitly lum to this court's decision unless otherwise stated.
283 showing, permit necessary the court should this prose- her unless defendant to withdraw or substantially prejudiced.5 State v. has been cution (1995). 845, 111 Garcia, 861, 192 2d 532 N.W.2d Wis. liberally, apply this court is test While circuit automatic is not entitled to an withdrawal. defendant Canedy, 582, 2d 469 565, Wis. id.; See State v. (1991). N.W.2d practical application test, of the As for " con- that a 'fair and reason'"
this court has held
templates
showing
adequate
of some
reason
the" 'mere
Canedy,
change
2d
defendant's
of heart.'"
Wis.
adequately
a defendant's
reason
at 583. Whether
change
up
explains his
heart is
to the discre-
or her
A
at 584.
circuit court's
tion of the circuit court. Id.
ruling
respect
discretionary
wall
with
to this
decision
erroneously
upset
exer-
it was
not be
on review unless
discretionary
reviewing
uphold
Id. A
court
cised.
will
appeal
on
if the circuit court reached a reason-
decision
legal
proper
on
conclusion based
standard and
able
logical interpretation
Salentine,
of the facts. State v.
(Ct. App.
429-30,
206 Wis. 2d
¶ 28. On that the circuit requiring provide him to court erred both in corrobora- considering of the and for tion recantation jury whether *12 Stehle's reasonable would believe recantation. holding requirements, Kivioja the defendant these erroneously argues, its dis- the circuit court exercised legal wrong applied cretion because it standard to analysis of motion. its his argued prejudiced The State not it was and we has that do point.
not address this argues ¶ 29. further that a defendant provide only just need the circuit court with a fair and withdrawal, reason for and a believes further that fair just provided and any "plausible" reason is when defendant offers Kivioja argues test,
reason. Under this only recantation, that Stehle's which was Stehle's "plausible," oath, under is and, therefore, statement a just entitling plea. fair and reason him to withdraw ¶ 30. The State concedes that defendant need by not show that the recantation is other corroborated jury evidence, nor that a reasonable would believe the disagrees However, recantation. it with the defendant per is, that a se, recantation more a fair and without argues Instead, reason for withdrawals. the State unreliability inherent a recantation supported by demands it be some indi- reasonable reliability cia of it can before be considered fair and just. agree parties outset, 31. At the we with both supported is recantation,
that when motion
need
defendant
show neither corroboration of the
jury
recantation nor that a
believe
reasonable
would
requirement
the recantation.
first
This
was established
only
applicable
McCallum
when a defendant
plea following sentencing.
seeks to withdraw a
See
McCallum,
[flirst,
by clear
prove,
the defendant must
and con
(1)
evidence,
vincing
was
that:
evidence
(2)
conviction;
after
the defendant was
discovered
(3)
evidence;
is
negligent
seeking
not
the evidence
(4)
case;
an issue in the
material
evidence
If
merely
proves
is not
cumulative.
the defendant
evidence,
convincing
by
these four criteria
clear
the circuit court must determine whether
reason
probability
able
that a different result
exists
would
Finally,
newly
in a trial.
dis
be reached
when
recantation,
have
covered evidence
a witness's
we
stated that the recantation must be corroborated
State,
discovered evidence. Zillmer v.
newly
other
(1968).
607, 616,
39 Wis. 2d
¶ 33. Manifest in the decision of the circuit court satisfy is its belief that requirements needed to the latter two holding However, in of McCallum. placed standard, it defendant to that too substantial upon burden the defendant. *14 previously
¶ 34. We
have held that the burden a
moving
defendant faces when
to withdraw his or her
plea
substantially
timing
varies
with the
of the motion.
It
plea
should be easier for a defendant to
withdraw
sentencing
before
than
Libke,
after.
will not reverse its erroneous exercise of discretion where we find that the facts of the record
applied to the proper legal support standard its conclusion. In re Paternity Stephanie R.N., 174 745, 767, Wis. 2d 498 (1993). N.W.2d 235 Kivioja argues
¶ 36. While that the circuit court applied wrong legal by rely- standard to his motion ing upon primarily McCallum, his focus is on the credibility engaged assessment that the court in when considering Stehle's recantation. The defendant precluded believes that a circuit court is from consider- ing credibility of evidence a defendant offers in support plea prior of a motion to withdraw a to sentenc- ing. support proposition, points As for this he to State v.
287 (Ct. App. 2d 448 N.W.2d Shanks, Wis. 1989), appeals reversed a decision in which the court denying plea with- a defendant's circuit court order "[flair appeals found that the court of drawal because plausible by record, were reasons, made support" Shanks, of the defendant's motion. offered by the court 2d at 292. is emboldened Wis. "plausible," appeals' which he of the term use considering precludes court from the circuit believes support credibility of a the evidence offered in argument, As to withdraw. we understand motion may "plausible" evidence be "credible" evidence mutually requirement least, exclusive—or bring "plausible" is a lesser threshold forward evidence *15 bring requirement "credible" forward than evidence.
¶ error for no rea- 37. The defendant is in other "plausible" that term is not as unrelated to son than are, he The in the term as words "credible" believes. synonymous interchangeable terms, in fact, and are appeals the court of used the term the context in which in Shanks. practical matter, note First, 38. as a we plausible within the Ameri-
the definition of as found (3d Dictionary English Heritage Language, can of the 1992), equates ed., the two terms: Seemingly valid, likely, apparently
Plausible: 1. or acceptable; plausible or credible: excuse. provides "plausi-
Id. at 1388. further that the It word synonymous "credible", is with as well as the terms ble" "believable" and "colorable": meaning
The these adjectives central shared merit 'appearing acceptance.': plausi- belief or pretext; excuse; ble a believable a colorable explanation; a credible assertion. purpose providing
Id. support For the evidence in plea, a motion to withdraw a we discern no difference requiring bring plausi- between a defendant to forward requiring ble bring evidence and one a defendant Regardless forward credible evidence. of the term used, bring a defendant must forward evidence that the cir- any cuit court finds believable, without which reason support offered in of withdrawal would not be fair and just. appeals' reasoning Second, the court of support position
Shanks does not
the defendant's
precluded
evaluating
a circuit court is
from
the credi-
bility
proffered
the defendant's
reason for
writing
sug-
withdrawal.
gested
that some courts have
plausible,
that a fair and
reason must be
appeals
court of
cited United States v. Navarro-Flores,
(9th
1980).
preclud-
¶ consistently accepted Third, 40. this court has credibility circuit court evaluations of the of evidence they plea early when consider withdrawals. As as our Libke, decision in Hansen, Justice Robert W. in a con- curring opinion, expressed evidentiary the view that an hearing presented on whether a defendant has a fair plea necessary and reason for a withdrawal
289 credibility." 2d Libke, 60 Wis. and "issues offact resolve (R. supplied). concurring) (emphasis Hansen, J., 130 at credibility recognized assess- court's a circuit haveWe cases since. ment in numerous Canedy, instance, 565, 2d In 161 Wis. 41. upheld a motion to with- denial of the circuit court's we upon plea that the defendant's assertion based draw court did "the because he did not understand defendant's] [the for with- asserted reasons not believe they plea, did not think therefore drawal of (emphasis supplied). just." We Id. at 585 fair and were further that wrote us did not believe in the case before
the circuit court he misunderstood contention that Canedy's he entered mind' when meaning 'depraved the record opinion was of the The court plea. Canedy's counsel such a contention. support did not trial 'had the in his brief to this court admits on the defendant's motion in this case denied court testi- that he found the defendant's grounds it is unbelievable mony incredible or otherwise brought.' would ever have been unlikely appeal this us it is obvious omitted] In the case before [citation did not believe judge, record that the circuit from the charge to which understand the Canedy did not guilty. he pled
Id. at 585-86. Dudrey 2d State, v. 74 Wis. (1976), denial of of a circuit court's a review
N.W.2d
upon
he did
his claim that
motion based
defendant's
plea,
accepted the circuit
his
this court
not understand
fully understood
that "the defendant
court's conclusion
negotiated plea
the nature of the
of the
the nature
[of
plea]."
[the]
proceedings
Id. at 483. We
time
apply an incorrect
that the circuit court did not
held
*17
denying
standard
the defendant's motion to with-
plea
"obviously
draw his
when it
disbelieved
contention,
defendant's
and in effect found that no rea-
guilty plea."
son was offered for withdrawal of the
Id.
(emphasis supplied).
Garcia,
And in
we reaffirmed our
holding
Canedy
that "if the circuit court does not
believe the defendant's asserted reasons for with-
plea,
just
drawal of the
there is no fair and
reason to
plea."
allow withdrawal of the
Garcia, 192 Wis. 2d at
(emphasis supplied).
credibility
43. These cases are evidence that
assessments are crucial to a determination of whether
just
supporting
the evidence offered is a fair and
reason
they
require-
withdrawal and
are consistent with the
allege
ment that the defendant must do more than
or
just
assert a fair and
reason, that he or she must also
actually
e.g., Canedy,
show that the reason
exists. See
("a misunderstanding
must be plausible or is credible reason the defendant's whether or believable. Identifying as inher- evidence recantation adopt
ently
a test
that we
unreliable,
the State asks
reliability of
could assess
circuit courts
which
with
than
that is more structured
manner
in a
recantation
by
credibility engaged in
the circuit
of
the assessment
alleges a mis-
a defendant
in those cases where
courts
understanding
plea.
recantation
Whether
of
ought
than
in manner different
treated
a
to be
evidence
as a fair and
offers
a defendant
other evidence
impression.
of first
is an issue
for withdrawal
reason
position
evi-
that recantation
46. The State's
unreliability, presents circuit courts
to its
dence, due
deciding
special
motions to with-
when
difficulties
with
precedent.
pleas
McCollum, this
In
is not without
draw
present special
does
a recantation
court observed
indulge
requiring
in
the circuit court to
circumstances
degree
inquiry
greater
other
than it would for
support
in
a defendant's
used
of new evidence
forms
plea
post-sentence
A recanta-
withdrawal.
motion for a
inherently
McCallum,
unreliable.
tion,
wrote, was
we
114).
Dunlavy,
(citing
21
2d at
Wis.
2d at 476
208 Wis.
genesis
in those cases
this conclusion
We found
oath,
an earlier
witness, under
recanted
in
which
e.g.,
admitting
perjury. See
statement,
thus
sworn
Dunlavy,
Strouse, 49
114; Loucheine v.
2d at
Wis.
(1880). Loucheine,
which con-
623,
Loucheine,
49 Wis. at
Our deci-
sion McCollum reaffirmed this conclusion that due
unreliability,
testimony
its
inherent
recantation
newly
be
other
must
corroborated
discovered evi-
dence,
it
without which would not
sufficient
be
reason
injustice required
permit
to find the manifest
following
defendant to
withdraw
his or her sen-
tencing. McCollum,
¶ 47. recantation, Given the *19 proposed tailoring has State the in test articulated sentencing. McCollum to motions made before The argues defendant that test articulated in McCol- ought lum not be followed in the instant case for two distinguishing reasons, that from the case facts here. First, McCollum concerned the much more difficult post-sentencing plea burden a defendant faces in a Second, withdrawal. unlike the in witness McCollum upon based, and the cases it is which Stehle's recanta- only oath, tion is the that made statement he has under by providing per- recantation, and has not Stehle jured himself. clear, 48. As our discussion makes above we agreement height-
are with the defendant burden a ened defendant faces under McCollum makes presentence application an to a unmodified that case plea involving testimony withdrawal recantation much precedent our too burdensome and inconsistent with clearly has drawn distinction between a defen- sentencing sentencing. dant's burden after before disagree However, we with the defendant that recan- only unreliable when the earlier and the tation both are under oath. The court later statements made Mayo, appeals 2d N.W.2d in State v. 217 Wis. (Ct. 1998), facing App. face reverse of what we namely made under oath fol- here, lowing a recantation not testimony, despite
earlier trial found that conflicting made statements were not fact that both credibility questions oath, unan- were still under Id. the fact that Stehle swered. at 229. We find that may perjured he at not himself when testified have hearing Kivioja’s per se, that establish, motion cannot oath, is statement, under credible. his second made application ¶49. The of a modified McCollum prior help sentencing will test withdrawals circuit determine whether a recantation is wor- courts just thy of belief and therefore a fair reason immediately test withdrawal. Such a as described preserve though automatic, liberal, not below will just appropriate application fair and reason test of the providing motions, time to such while the same a circuit court can assure the relia- framework which bility inherently unreliable of otherwise recantation evidence.
¶ 50. evidence should constitute a fair and New preponder- reason the defendant shows where (1) ance of the the evidence was evidence (2) entry plea; discovered after ofthe the defendant was *20 (3) negligent seeking evidence; the evidence not (4) case; is material an issue in the and to the evidence merely require- first is not cumulative. These four unduly offering ments will not burden a defendant as a recantation evidence recantation its nature generally Terrance, satisfies these criteria. See State v. (Ct. 1996). App. 501, 2d 445 202 Wis. N.W.2d holding recantation, And when the new evidence is not requirements the defendant to these reasonable, is prior entry if the defendant knew of evidence of a plea, negligent seeking or was the evidence, it would just not plea. fair be and to allow him or her to withdraw a just it Nor would be fair and to allow withdrawal where evidence is not material and where it would merely be cumulative. meeting In criteria, addition to four these newly
when the discovered evidence is a witness's here, recantation as it is the circuit court must deter- mine that the recantation has of reasonable indicia reliability. adopt
¶ 52. The test we differs from the more significant ways. onerous McCallum test in First, a just defendant will held to fair be demonstrate a plea by preponderance reason for withdrawal of of demanding the evidence, less con- than the clear and vincing required standard similar motion made sentencing. Second, after a defendant need not show probability that there is a reasonable aof different Third, result at trial. will need defendant not to show other new evidence that corroborates the recantation. place requirement McCallum, this last found in here, under the test articulate we defendant will be showing held lesser the recantation has reliability is, reasonable indicia —that worthy recantation is of belief. Should the court find met, are the first four criteria and that the recan- worthy belief, tation the defendant will have provided just fair sufficient reason for withdrawal. application
¶ 53. The
of this modified McCallum
justified prior
sentencing
test is
because
credibil-
ity
reliability
and the
of recantation evidence is crucial
to a determination of
the fair and
whether
reason
*21
Regardless
actually
by
of
defendant
exists.
offered
the
unreliability
offered, its inherent
recantation is
when
If a
could be found unreliable
is
recantation
static.
sentencing,
do
that same
we
not believe
after
prior
equally
sen-
if offered
recantation,
tencing,
unreliable
resting
his or her
entitle
defendant
should
solely
withdrawal.
motion
on that recantation
properly
Therefore,
court must
the circuit
54.
worthy
credible,
the recantation is
determine whether
(Abrahamson,
2d at
McCallum, 208 Wis.
of belief.
concurring). The circuit court is to determine
C.J.
worthy
[the witness]
he
belief,
is
of
whether
"whether
believability,
realm of
whether
or she is within the
credibility persuasive
any
has
recantation
indicia of
[ ]
juror
presented
trial." Id. Of
if
at a
a reasonable
find that the recanta-
course, should the circuit court
may deny
worthy
belief,
is
of
it
tion incredible or not
McCallum, 208
motion to withdraw. See
defendant's
(Abrahamson,
concurring).
C.J.,
How-
Wis. 2d at
jury
recantation,
ever,
believe the
if a reasonable
could
her
defendant is
to withdraw his or
then the
entitled
plea,
added
the defendant does not have the
burden
jury
showing
a reason-
that a reasonable
would have
guilt,
required
is
able doubt about the defendant's
as
sentencing.
a motion is made after
when
guided
may
A
court
be
in its evalua-
circuit
looking
reliability
by
to that
tion of the
statement
have
in other contexts are assurances
which we
stated
238,
Brown,
v.
96 Wis. 2d
of trustworthiness. See State
(1980).
¶ 57. While the circuit did not court assessing newly test for recantation evidence articu- here, lated we find that the circuit court's discussion many that Stehle's statements show so marked incon- credibility "reliability and is that sistencies seriously challenged" finding a that recanta- to be finding of law. Its written tion is as matter incredible recanting jury would not believe the that "a reasonable Jody finding accomplice Stehle" is also statement of law. as matter of the recantation is incredible that agree parties upon a motion While we with both sentencing prior a defendant is not withdraw jury required to a reasonable would believe show that jury recantation, the circuit court's decision to a recantation is tantamount would not believe the finding offered the defendant the reason *23 finding with a is not inconsistent incredible. Such upon his the burden a defendant faces either lower sentencing, prior nor is it with to inconsistent motion holding in our McCallum.
¶ McCallum, we held that the circuit 58. less that a recantation was credible court's conclusion necessarily did not lead than an initial accusation jury not have a the that a reasonable could conclusion McCallum, 208 Wis. 2d 474-75. reasonable doubt. finding "[a] However, that that the recanta- we stated necessarily leads to the conclusion tion is incredible lead the not to a reasonable recantation would jury." in the of Id. at 474. This distinc- minds the doubt important play into tion is comes under facing here. the circuit court was While circumstances required jury was not show that a would a recantation, he must be able to show that believe jury requirement could believe the recantation. This requires no than does no more and less that which support a offers in of a motion to reason defendant previ- plea be believable. And as we have withdraw ously held, if the asserted reason offered may in believable, is not the circuit its defendant court deny discretion the defendant’s motion to withdraw present for the defendant's failure to a fair and just Canedy, reason. See 2dWis. at 585. judge Furthermore, 59. while circuit court any proposed
did not look to of the factors we have independent above, our review the record with an eye supports to those factors the circuit court's conclu- sion that Stehle's recantation does not constitute fair Kivioja's plea reason to withdrawal allow reliability. because it lacks reasonable indicia of gave "clearing" ¶60. First, Stehle statement Kivioja only Stehle after received what he considered extremely light an to be harsh his sentence earlier willingness cooperate police. Having with the lengthy expressed received a sentence, Stehle anger police with when he made his decision to timing coming only recant. The recantation, of Stehle's days nearly after his but sentence 16 months since he Kivioja's first crimes, told officers in the involvement seriously depreciates reliability. the statement's Second, Stehle's not recantation was cor- by any roborated other new evidence in case. While necessary finding not corroboration is to a recan- *24 may reliability, reliable, tation is particularly it to serve establish any in the absence of other assurances of testify trustworthiness. Stehle did that he had motive accusing Kivioja Kivioja gave for fact that officers —the directly real Stehle's name which led Stehle's to arrest. police things Stehle also testified to were make Kivioja. Relying implicate on him if he easier would on argues McCallum, defendant that Stehle's motives to falsely provides accuse defendant some evidence of internal corroboration for recantation. professed do not However, Stehle's motives 62.
provide here, where, as his internal corroboration guarantees lacks other circumstantial statement McCallum, In we held "corrobo- trustworthiness. (1) requirement is met if: in recantation case ration statement; for the initial false is feasible motive there (2) guarantees of the there are circumstantial McCallum, 208 of the recantation." trustworthiness is, internal corroboration alone 2d at 477-78. That Wis. if are no other circumstantial will not suffice there guarantees of trustworthiness. particular, noted, In as the circuit court surrounding in the stories circumstances
varied testimony May damning Stehle's as 9,1995, crime is police, Stehle first to the whole. statement burglaries in all of the to his involvement confessed charged May Kivioja except the one on with which was in letter, that, Stehle 9,1995. In his recantation wrote May burglary 9, 1995, fact, did not commit the jail on that Stehle and that he himself was not date. crime, in the denied his involvement own person hap- explained third who he that an unnamed day burglary actually pened meet on the burglary. Stehle wrote then that he committed person of this third unless would not disclose name immediately prison and not he released from would be yet parole. provided placed Stehle a third version be on Kivioja's of his of this crime motion withdrawal explained himself, alone, he that he had when However, he able to the crime. was not committed explain came how the six bills were stolen $100 explain why Kivioja's possession, nor could he or into party burglary yet he third how had attributed the letter. His varied when he did so his recantation inconsistency stories are evidence the internal *25 Stehle's recantation that leads to the conclusion that his recantation is incredible.
¶ Third, 64. Stehle's recantation not does bear reliability accompanies the assurance of a state- against penal ment interest the declarant itas would if he had made both this the earlier state- conflicting ment under oath. Where statements are oath, made under the second statement as an serves peijury. Having admittance of statements, made both perjured has, fact, the declarant him or herself. against penal Stehle's statement is not interest. presence single 65. We do note the aof indi- reliability, cium of and that is that Stehle's recantation given was However, under oath. above, as we stated single reliability indicia, this itself, lends little original to the recantation. Either Stehle's accusation or his false, recantation is and the fact that one was get made under oath does not us nearer to the answer of whether the latter statement is reliable. independent Our review of the dem- record
onstrates that Stehle's recantation lacks reasonable reliability indicia of without which it does not consti- Kivioja's tute a fair and reason to allow presentence plea withdrawal:
By the Court.—The order of the circuit court for County Fond du Lac is affirmed.
¶ 67. SHIRLEY S. ABRAHAMSON, CHIEF 0dissenting). agree majority opin- JUSTICE I with the ion that the circuit court erred as a matter of law in holding prove that the defendant must that a reasona- jury ble would believe the recantation and recantation must be corroborated. Because these law, I errors of would reverse the order the circuit *26 circuit court to exer- cause to the and remand the court I standard set forth below. its under the cise discretion guilty governing of or ¶ a The law withdrawal 68. sentencing easy plea First, to state. is before no-contest right to an with- not have absolute a defendant does plea plea imposition A is not of sentence. before draw formality meaningless court makes the circuit when plea. inquiry of the Sec- into circumstances full allow a court nevertheless ond, a circuit should sentencing plea for before defendant withdraw prosecution "any just unless the has and reason" fair substantially upon prejudiced reliance been granting denying plea.1 Third, or defendant's plea within the sound to withdraw the rests motion of circuit court. discretion guilty governing ¶ of a or The law withdrawal 69. sentencing is, however, not so no-contest before easy "any just apply. standard The fair and reason" any "lack[s] pretense exactness." United- of scientific (D.C. Cir.) (en 220 Barker, 208, F.2d States v. banc), 514 (1975). Appellate denied, 421 1013 cert. U.S. meaning give of and federal courts decisions state this standard. present appeals certified the The court of 70. perceived it inconsistencies to this court because
case interpreting appellate Wisconsin decisions in certain just "any applying fair reason" standard. and and majority opinion not, conclude, I these The does resolve perceived inconsistencies.
1 579-584, Canedy, v. 2d 469 N.W.2d State Wis. (1991). in "any test is set forth The fair and reason" Guilty, Criminal Justice —Pleas Standard ABA Standards (1980) 32(e), Federal Rules of Criminal Pro 14-2.1 and Rule Wright, Alan 3 Federal Practice and cedure. See Charles Part). (1998 Procedure, 2d, Criminal Rule 32 Pocket its certification memorandum, the court appeals plausibility asked this court "whether the approach precludes credibility Shanks,2 which light Canedy,3 assessment, correct law in permits which an such assessment of defendant's testi- mony presentence setting, in a McCallum,4 and which contemplates testimony an assessment of a recanter's postsentence setting." in a majority opinion my
¶ 72. The not, view, does clearly distinguish applica- between describe the bility plausibility credibility. of the standards of *27 Similarly, majority opinion explain the fails to ade- quately the basis for the distinction it makes between testimony the corroboration of recantation and the reli- ability testimony. of recantation majority opinion today
¶
Moreover,
73.
the
departs
applying
from Wisconsin's tradition of
federal
grounds
plea
case law to determine
for
withdrawals5
adopts
four-part
a new
for
test used motions for a
newly
trial on
new
the basis of
discovered evidence.6
majority opinion
The
is not clear about the relation of
prior
this
test
new
to the rules set forth in our
cases.
applicable
vacating
guilty
IAlso, doubt that a test
a
princi-
verdict on the
of
basis
new evidence should be
pal
applied
withdrawing
plea
test to be
before
sentencing.
allowing
The rationale for
be
verdict to
(Ct.
Shanks,
v.
284,
2 State
152 Wis. 2d
448
264
N.W.2d
1989).
App.
3Canedy,
5 See
Wis. 2d
582-83.
applicable
trial,
For the test
to motions for new
see State
(Ct.
496,
Terrance,
v.
202 Wis. 2d
App.
¶
or no-con
In a motion withdraw
74.
following
apply
sentencing
plea
I
would
test
before
determine, as a matter of
court should
The circuit
test:
worthy
testimony is
the recanter's
law, whether
jury.
should not deter
The circuit court
belief
Instead,
is true or false.
the recantation
mine whether
testimony
merely
determine whether
it should
credibility
any
recanting
has
indicia
witness
juror
persuasive
if
testi
to a reasonable
would be
mony
presented
McCallum,
at trial.
State v.
were
Cf.
(Abra
(1997)
463, 487,
2d
¶ to the circuit I remand the cause 75. would I have set whether, under test to determine court any above, reason to allow there is fair forth present case. the no-contest withdrawal reasons, I these dissent. 76. For I to state that JUSTICE am authorized *28 joins BRADLEY this dissent. ANN WALSH