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Plea-Withdrawal – Pre-sentence – Potential Alibi Witness

State v. Anthony J. Leitner, 2001 WI App 172, affirmed on other grounds, 2002 WI 77
For Leitner: Jim Scott

Issue: Whether the trial court properly denied a presentence motion to withdraw guilty plea.

Holding:

¶27. When a defendant shows a fair and just reason, the trial court should permit the plea withdrawal unless there is substantial prejudice to the prosecution. Kivioja, 225 Wis. 2d at 283-84; Garcia, 192 Wis. 2d at 861. In this case, the State has not claimed substantial prejudice and so we address only whether Leitner demonstrated a fair and just reason.¶28. The trial court properly denied the motion because it was not supported by a preponderance of evidence showing that Leitner actually had an alibi witness which he had previously chosen to conceal. At the hearing on his motion to withdraw his plea, Leitner did not produce his fiancée and did not offer his own testimony. He provided no details about what his fiancée might say if she testified. He did not even specify when she had miscarried. By neither specifying nor offering evidence of these details, Leitner failed to meet his burden of proof.

¶29. The trial court also found that Leitner’s proffered reason for plea withdrawal lacked credibility. We defer to this finding and conclude it is well supported by the record.

¶30. The trial court could have reasonably concluded that it is not credible that Leitner failed to discuss his fiancée’s potential testimony with his attorney if his fiancée could plausibly testify that she was with Leitner during the time frame of the crime. Even if Leitner had been concerned about his fiancée’s health due to her pregnancy, that does not explain why he did not even broach the issue with his attorney. Moreover, absent some information showing that Leitner’s fiancée was particularly vulnerable during her pregnancy, there is no reason to think that testifying would endanger her health.

¶31. In this context, the trial court was justified in finding that there was a very different reason for Leitner’s belated request for plea withdrawal: the highly negative presentence report.”

 

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