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Plea-Withdrawal – Pre-Sentence – Newly Discovered Evidence – Recantation

State v. Dennis J. Kivioja, 225 Wis.2d 271, 592 N.W.2d 220 (1999), on certification
For Kivioja: Mark G. Sukowaty.

Issue/Holding: Kivioja pleaded guilty after his codefendant, Stehle, implicated him in a string of burglaries. Following his own sentencing and prior to Kivioja’s, Stehle recanted and Kivioja moved to withdraw his pleas. The trial court denied the motion after a hearing; the court of appeals certified the appeal, and the supreme court now affirms. The court reiterates the familiar “fair and just reason” test for pre-sentencing plea withdrawal motions. The unique aspect of this case is interplay between the relatively liberal nature of that test and the test for newly discovered evidence – recantation specifically:

¶50 New evidence should constitute a fair and just reason where the defendant shows by a preponderance of the evidence that (1) the evidence was discovered after entry of the plea; (2) the defendant was not negligent in seeking the evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative. These first four requirements will not unduly burden a defendant offering recantation evidence as a recantation by its nature generally satisfies these criteria. See State v. Terrance J.W., 202 Wis. 2d 496, 501, 550 N.W.2d 445 (Ct. App. 1996). And when the new evidence is not recantation, holding the defendant to these requirements is reasonable, for if the defendant knew of evidence prior to the entry of a plea, or was negligent in seeking the evidence, it would not be fair and just to allow him or her to withdraw a plea. Nor would it be fair and just to allow withdrawal where the evidence is not material and where it would be merely cumulative.

¶51 In addition to meeting these four criteria, when the newly discovered evidence is a witness’s recantation as it is here, the circuit court must determine that the recantation has reasonable indicia of reliability.”

¶52. The test we adopt differs from the more onerous McCallum test in significant ways. First, a defendant will be held to demonstrate a fair and just reason for withdrawal of a plea by a preponderance of the evidence, less demanding than the clear and convincing standard required of a similar motion made after sentencing. Second, a defendant need not show that there is a reasonable probability of a different result at trial. Third, a defendant will not need to show other new evidence that corroborates the recantation. In place of this last requirement found in McCallum, under the test we articulate here, the defendant will be held to the lesser showing that the recantation has reasonable indicia of reliability-that is, that the recantation is worthy of belief. Should the court find that the first four criteria are met, and that the recantation is worthy of belief, the defendant will have provided a sufficient fair and just reason for withdrawal.

The circuit court applied an incorrect test. Under a similar circumstance in McCallum, the remedy was remand so the trial court could correctly apply law to facts. The court nonetheless affirms, exercising its right of independent review. First, it read the trial court findings to include an assessment “that the recantation is incredible as a matter of law.” Thus, the circuit court acted within its discretion in denying the motion on the basis that “the asserted reason offered by the defendant is not believable.” Additionally, the recantation “lacks reasonable indicia of reliability” for fact-specific reasons. Bottom line: “the circuit court must engage in some credibility determination of the proffered reason;” i.e., “must determine whether the defendant’s reason is credible or plausible or believable.”

The dissent identifies the problem:

¶72 The majority opinion does not, in my view, clearly distinguish between and describe the applicability of the standards of plausibility and credibility. Similarly, the majority opinion fails to explain adequately the basis for the distinction it makes between the corroboration of recantation testimony and the reliability of recantation testimony.

Indeed, the very problem is, as the dissent suggests, that the court doesn’t explain what it means by making a credibility determination — and, if taken too literally, that task vests too much authority in the reviewing judge. To make this point concrete, consider this more detailed statement of the test (emphasis supplied), U.S. v. Rouse, 410 F.3d 1005 (8th Cir 2005):

To receive a new trial, the movant must show that “the newly discovered evidence is of such a nature that, in a new trial, [it] would probably produce an acquittal.” United States v. Papajohn, 212 F.3d 1112, 1118 (8th Cir. 2000) (quotation omitted). When the claim of newly discovered evidence is based on a recantation, the district court must first determine whether the recantation is credible. In this regard, “the real question . . . is not whether the district judge believed the recantation, but how likely the district judge thought a jury at a second trial would be to believe it.” Grey Bear, 116 F.3d at 350. Our review of this credibility finding for clear error is extremely deferential. See Grey Bear, 116 F.3d at 351. We review the denial of the new trial motion for a clear abuse of discretion. See Papajohn, 212 F.3d at 1117-18.

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