The circuit court did not erroneously exercise its discretion in denying Ferguson’s plea withdrawal motion, which was based on recantations by two witnesses who had previously said Ferguson fatally shot a man. The circuit judge applied the proper standard under State v. McCallum, 208 Wis. 2d 463, 561 N.W.2d 707 (1997), when it found the recantations were incredible as a matter of law and uncorroborated by other newly-discovered evidence, and its findings are not clearly erroneous.
In 1995 Ferguson pleaded guilty to reckless homicide and was sentenced to prison. (¶¶2-7, 21). He later moved to withdraw his plea based on newly-discovered evidence in the form of recantations by two witnesses, Spencer and Taylor, who had originally said Ferguson shot the victim. (¶¶2-3, 8-9). Spencer’s recantation claimed a man named Randolph shot the victim. (¶¶10-13, ). Taylor also said in an affidavit that Randolph was the shooter, but at a hearing he testified he didn’t see who fired the fatal shot. (¶¶14-17).
While the witnesses’ recantations meet the four-prong test for newly-discovered evidence, McCallum, 208 Wis. 2d at 473, they can’t provide a basis for post-sentencing plea withdrawal unless: 1) there is a reasonable probability that a different result would be reached in a trial in light of the recantations; and 2) the recantations are corroborated by other newly-discovered evidence, id. at 473-74. The recantations by Spencer and Taylor fail to meet these requirements:
¶30 By determining that the recantations were incredible as a matter of law, the circuit court did not need to separately consider whether there was a reasonable probability that a different result would be reached in a trial because a finding that the recantations are incredible as a matter of law already answers the “reasonable probability” inquiry. McCallum, 208 Wis. 2d at 475 … (“A finding that the recantation is incredible necessarily leads to the conclusion that the recantation would not lead to a reasonable doubt in the minds of the jury.”).
¶31 As McCallum tells us, a post-sentence recantation must be corroborated by other newly-discovered evidence. Id., 208 Wis. 2d at 476–477 …. As noted, this can be done by showing that: “(1) there is a feasible motive for the initial false statement; and, (2) there are circumstantial guarantees of the trustworthiness of the recantation.” Id., 208 Wis. 2d at 478 …. We agree with the circuit court that the “motive” for Spencer’s alleged initial false statements was not “feasible” because Spencer’s alleged fear of Randolph would have dissipated when Randolph died shortly after Ferguson pled guilty, and Spencer did not allege that Randolph’s alleged threats might have been carried out by a … disgruntled relative or friend [of Randolph’s]. Further, although the second requirement (circumstantial guarantees of the trustworthiness of the recantation) may be established by … internal consistency, both Taylor’s and Spencer’s recantations were woefully inconsistent [internally] and inconsistent with each other. Thus, neither served as newly-discovered corroboration of the other.
In arguing that the circuit court erred by judging the credibility of the recanting witnesses, Ferguson claimed the circuit court should have simply determined whether the recantations are “worthy of belief” or “within the realm of believability.” Ferguson acknowledged this language comes from the concurrence in McCallum, but he argued it was effectively adopted in State v. Kivioja, 225 Wis. 2d 271, 592 N.W.2d 220 (1999), which modified the McCallum test for cases involving pre-sentencing plea withdrawal motions. The court of appeals says any modifications Kivioja made to McCallum shouldn’t apply here because Ferguson, like McCallum but unlike Kivioja, moved to withdraw his plea after sentencing. (¶¶24-28). But even the McCallum concurrence, 208 Wis. 2d at 487-88, agreed the circuit court should deny plea withdrawal if it finds the recantation incredible as a matter of law—which is, after all, the same as finding the recantation isn’t worthy of belief. Here the trial court found Spencer’s and Taylor’s recantations incredible as a matter of law, so even if Kivioja did change the standard, “Ferguson is fighting a battle that he cannot win….” (¶27).