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Plea-Withdrawal, Pre-Sentence – Newly Discovered Evidence

State v. Matthew J. Laughrin, 2011AP1600-CR, District 1, 6/12/12

court of appeals decision (not recommended for publication); case activity

Laughrin, after pleading guilty to second-degree reckless homicide for providing a controlled substance (Suboxone) to someone who died after ingesting it, sought pre-sentencing plea-withdrawal on the basis of an expert’s report that Suboxone alone generally doesn’t cause death. The trial court denied the motion, and the court of appeals now affirms.

¶13      Newly-discovered evidence may constitute a “fair and just reason” to withdraw a guilty plea when a 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.”  State v. Kivioja, 225 Wis. 2d 271, 294, 592 N.W.2d 220 (1999).  “Withdrawal of a guilty plea before sentencing is not an absolute right[,]” however.  See State v. Jenkins, 2007 WI 96, ¶32, 303 Wis. 2d 157, 736 N.W.2d 24.  The defendant must prove by a preponderance of the evidence that there is a “fair and just reason” for doing so.  Id.  The reason must be something other than belated misgivings about the plea or the desire to have a trial.  Id.

¶14      In this instance, we review whether Dr. Junig’s testimony constitutes newly-discovered evidence allowing for a plea withdrawal de novo.  While we apply the clearly erroneous standard to findings of evidentiary or historical fact as well as credibility determinations, see id., ¶33, whether an expert’s opinion constitutes newly-discovered evidence or whether it instead is merely “‘the newly discovered importance of existing evidence’” is a question of law we review de novosee State v. Fosnow, 2001 WI App 2, ¶12, 240 Wis. 2d 699, 624 N.W.2d 883 (citation omitted).  We conclude that de novo review applies because all of Laughrin’s arguments regarding his presentence plea-withdrawal motion stem from a single premise—Laughrin’s belief that that the trial court erred in determining that Dr. Junig’s testimony was not newly-discovered evidence.

¶15      ….  We conclude that the “evidence” Laughrin claims is newly-discovered—Dr. Junig’s July 13, 2010 Suboxone report—is not new evidence, but rather “‘the newly discovered importance of existing evidence.’”  See id.  (citation omitted).  The record indicates that defense counsel had all of the facts and materials on which Dr. Junig based his opinion before Laughrin pled guilty.  For example, defense counsel explained in her motion to withdraw the plea and accompanying affidavit that she “diligently sought any and all evidence that would support Laughrin’s defense,” including reviewing “over 1000 pages of discovery.” Similarly, the trial court found, and Laughrin does not dispute, that the toxicology report and other materials upon which Dr. Junig based his opinion were in the defense’s hands prior to the plea.  See Jenkins, 303 Wis. 2d 157, ¶33 (we will uphold trial court’s findings of fact unless they are clearly erroneous).  In other words, while Dr. Junig’s opinion may be new, the facts upon which he bases that opinion are not.  His opinion is nothing more than another interpretation of the same evidence counsel had in her possession well before Laughrin pled guilty.  See Fosnow, 240 Wis. 2d 699, ¶12.  Additionally, we cannot conclude that Laughrin was not negligent in seeking the evidence—particularly as Laughrin himself admits that trial counsel should have garnered Dr. Junig’s opinion earlier.  See Kivioja, 225 Wis. 2d at 294.

A troubling analysis, at least at face value. Pre-sentencing plea withdrawal requires only a “fair and just” reason,” a more forgiving test than the post-sentencing manifest injustice test. Kivioja, ¶34 (“It should be easier for a defendant to withdraw a plea before sentencing than after.”). But the court’s discussion here seems to blend the two tests, not formally but instrumentally. Note, for example, the heavy reliance on Fosnow, a post-plea case. (Fosnow stressed (¶26) an interest in finality in denying relief; does the same interest attach in the pre-sentencing context?) By contrast, while Kivioja does apply the newly discovered evidence doctrine to the pre-sentencing context, it takes pains (¶¶48-49) to modify the test so as to ” preserve the liberal, though not automatic, application of the fair and just reason test appropriate to such motions.” No such sensitivity to context is manifest here. (Nor is it at all clear that an expert’s opinion as to cause of death can’t be “newly discovered evidence” simply because based on previously-known facts. Fosnow‘s holding (¶26) is narrower than that, aside from the different, post-sentencing context: “We … conclude … that new expert opinions obtained postconviction do not qualify as newly discovered evidence regarding a defendant’s mental responsibility for a crime.” Mental responsibility and cause of death – not the same things. This isn’t to say that they couldn’t be treated the same for NDE purposes, only that it’s not self-evidently so.)

All that said, the court says, almost as an afterthought, that it can’t conclude the defense was non-negligent in obtaining the new opinion, ¶15. NDE requires that “the defendant was not negligent in seeking the evidence,” ¶13, so that a conclusion of negligence necessarily defeats NDE. (Whether it should do so in the pre-sentencing, “fair-and-just-reason” context is something else, as noted.) The double negative is a bit tricky, but it seems clear that the court drew an affirmative conclusion that counsel was negligent; that is, the court appeared to perceive “that trial counsel should have garnered Dr. Jung’s opinion earlier.” Nonetheless, Laughrin anticipated this possibility and argued in the alternative that trial counsel was ineffective for not getting this opinion. But the court of appeals, without acknowledging its conclusion of negligence, rejected the idea of deficient performance, ¶19 (“trial counsel did properly investigate M.K.’s cause of death and was therefore not ineffective in this respect”). There might be a way of squaring this circle – counsel negligently failed to seek the opinion, therefore can’t show NDE; counsel diligently investigated cause of death, therefore can’t show IAC – but it’s not immediately apparent how. The court goes on to say (¶¶21-23) that the doctor’s report isn’t really consequential; that Laughrin therefore can’t show IAC-prejudice in the sense the report would have impacted his decision to plead guilty. More particularly, the court discerns (¶21) that “the report is inconclusive regarding the cause of M.K.’s death.” Perhaps. But if so, then this ought to have been the focus of the analysis altogether, because it would have dispatched both IAC (no prejudice) and NDE (not “material to an issue in the case”) claims, without unnecessary detours into various analytical thickets.

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