Bell pleaded to two sexual assaults: one of his 9-year-old daughter and one of his 14-year-old stepdaughter. He maintained his innocence but insisted that he would plead to spare them from testifying. After sentencing, he filed postconviction motions alleging his counsel didn’t sufficiently investigate the possibility that the 14-year-old’s boyfriend was the actual perpetrator, and also that there was newly-discovered evidence in the form of a more detailed recantation by the 9-year-old: she now also said it was the boyfriend who’d assaulted her. The circuit court denied both without a hearing, but the court of appeals now says Bell should have a chance to prove his claims.
Bell had told his counsel that the boyfriend might be the perpetrator: both victims tested positive for chlamydia, which the boyfriend also had; there’s no evidence Bell ever had the disease. The court of appeals notes that, to put on evidence about the boyfriend, Bell would have to satisfy the “legitimate tendency” test of State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12 (Ct. App. 1984). It goes on to hold that the chlamydia evidence, along with other evidence about the boyfriend, could meet this test, though it can’t be sure due to the lack of a hearing. And, if the defense was a feasible one, counsel may have been deficient for failing to investigate it:
Based on the evidence in the record along with the facts alleged in his postconviction motion, filing a Denny motion with regard to A.C. would have been a reasonable defense strategy. However, because there was no evidentiary hearing held on this issue, at this juncture we have no way of knowing whether there was a satisfactory reason for trial counsel’s failure to do so. See State v. Elm, 201 Wis. 2d 452, 464-65, 549 N.W.2d 471 (Ct. App. 1996) (“A strategic trial decision rationally based on the facts and the law will not support a claim of ineffective assistance of counsel.”). Therefore, we conclude that Bell has alleged sufficient facts to support his assertion that his trial counsel was deficient for not pursuing a Denny motion
regarding this evidence. See Allen, 274 Wis. 2d 568, ¶21.
(¶26). On prejudice, the court of appeals similarly says there’s not a factual justification for the trial court’s conclusion that Bell knew about the defense and decided to plead anyway:
The trial court found that Bell was aware of this evidence prior to entering his pleas, and thus even if trial counsel was deficient for not filing a Denny motion, he still opted to accept the plea offer. Therefore, the court held that Bell had alleged no facts to support his claim “that he would have proceeded to trial with this defense,” which defeats the prejudice prong. See Hill v. Lockhart, 474 U.S. 52, 59 (1985).
However, while the evidence relating to A.C. was known prior to Bell entering his pleas, the record indicates that it was never fully developed. At a pretrial hearing in January 2012, the admissibility of this evidence was discussed, and the trial court observed that it would “require a separate hearing.” At that point, Bell was represented by his original trial counsel, who stated that he needed more time to “[flesh] this out.”
In fact, it was postconviction counsel’s investigator who first obtained a more definite, potentially admissible evidence relating to A.C.’s chlamydia diagnosis: testimony from A.C. regarding his relationship with S.E. and his chlamydia diagnosis, corroborated by police reports.
Turning to the newly-discovered evidence claim, the court of appeals disagrees with the circuit court’s conclusion that because the 9-year-old had previously made some statements of recantation, her later, more detailed account isn’t “new.” (¶33.) As with the IAC claim, the court concludes that Bell has shown enough to get a hearing where he can attempt to meet the requirements of State v. Kivioja, 225 Wis. 2d 271, 285, 592 N.W.2d 220 (1999) (which lays out the general test), and State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997) (which imposes the additional rule that recantations must be corroborated). (¶¶34-37).
All in all, a well-reasoned and explained decision. It’s probably most notable for the fact that the appellate court didn’t allow the standard of review to become a rubber stamp, as often happens. While recognizing evidentiary rulings are discretionary, the court of appeals also correctly observes that where such decisions are founded in errors of law–constitutional or otherwise–they are erroneous and must be reversed. (¶21, ¶31).