State v. Daniel J. Rejholec, 2023AP2192-CR, 5/28/25, District II (recommended for publication); case activity
In a consequential appeal, COA holds that allocution statements are admissible evidence after a plea has been withdrawn.
Rejholec was charged with various crimes based, in large part, on his statements during an in-custody interrogation. (¶2). Rejholec moved to suppress and that motion was denied. (Id.). Thereafter, Rejholec entered a no-contest plea. (Id.). During the ensuing sentencing hearing, he made several inculpatory statements. (Id.).
Rejholec appealed and COA reversed, holding that Rejholec’s statements during the police interrogation should have been suppressed. (¶3).
Our previous post on that case can be found here.
On remand, the circuit court permitted Rejholec to withdraw his plea. (¶4). Rejholec then filed a motion “seeking to prohibit the State from introducing the inculpatory statements he made during the sentencing hearing in future proceedings.” (Id.). The circuit court granted the motion and the State appeals. (¶10).
COA begins with the main rationale identified by the circuit court in its decision: § 904.10, which reads:
Evidence of a plea of guilty, later withdrawn, or a plea of no contest, or of an offer to the court or prosecuting attorney to plead guilty or no contest to the crime charged or any other crime, or in civil forfeiture actions, is not admissible in any civil or criminal proceeding against the person who made the plea or offer or one liable for the person’s conduct. Evidence of statements made in court or to the prosecuting attorney in connection with any of the foregoing pleas or offers is not admissible.
(¶13). Rejholec’s appeal focuses on the “in connection with” language in the final sentence.
Reviewing the statute under principles of statutory construction, COA concedes
At first glance, § 904.10’s reference to statements made “in connection with” withdrawn guilty pleas, no contest pleas, and offers to plea is seemingly broad— broad enough to arguably include allocution statements such as those at issue here
that arose following the entry of one of the aforementioned pleas.
(¶16).
COA goes on to state, however, that there is no real need to engage in a textualist analysis of this statutory language as a common law interpretation of that language already exists which is dispositive to this appeal. (Id.).
COA begins with State v. Nash, which “considered whether incriminating testimony Nash provided during the trials of co-defendants—testimony which he provided as part of a guilty plea that was later withdrawn following lengthy litigation—was admissible as impeachment evidence at Nash’s own trial when the testimony he gave conflicted with the testimony he had previously given in his co-defendants’ trials.” (¶17).
To resolve the proper interpretation of § 904.10, the Nash court looked to federal cases interpreting an analogous federal rule. (¶18). While those cases also acknowledged the broad language of the rule at issue, the federal courts held that a broader reading would be “contrary to the purpose and policies promoted by the rule.” (¶18). In both the federal courts’ and COA’s view, this rule “was created to allow for free and open discussion between the prosecution and defense during attempts to reach a compromise.” (¶19). To protect post-plea statements, like Nash’s later testimony, would not serve this purpose. (Id.). Accordingly, Nash’s post-plea statements–even though they were included within testimony that he agreed to give as part of his plea–were not “in connection with” the plea. (Id.).
SCOW cited Nash with apparent approval in its 2014 Myrick decision for the proposition “that WIS. STAT. § 904.10 does not exclude statements a defendant makes after plea negotiations are finalized.” (¶20). Applying Nash’s rule, SCOW held that a defendant’s pre-plea statements at a preliminary hearing, statements made to keep the possibility of a plea bargain “open,” were made “in connection with” the plea and thus were inadmissible. (Id.).
Summarizing and synthesizing these two cases, COA therefore holds that
those cases have clearly construed WIS. STAT. § 904.10’s prohibition against allowing the State to introduce “[e]vidence of statements made in court or to the prosecuting attorney in connection with” withdrawn guilty pleas or no contest pleas as applying only to statements a defendant makes while plea negotiations are ongoing and prior to a plea negotiation being finalized and accepted—not inculpatory statements made after a plea has been finalized.
(¶22).
While not strictly relevant to this appeal, COA also clarifies that precedent also establishes : (1) statements made during a guilty plea hearing are inadmissible (State v. Mason); (2) statements made to a PSI writer are inadmissible, but because of a different statute (State v. Crowell); and (3) statements made to a defense PSI writer are admissible, as the PSI statute is not applicable in that context. (State v. Greve).
Having determined that the statute does not bar admission of Rejholec’s statements, COA then briefly engages with the circuit court’s other rationales for exclusion. First, the circuit court apparently believed exclusion of these statements was necessary to effectuate the remedy of plea withdrawal, which aims to “put the person who entered the plea in the position they were in before they entered the plea.” (¶24). COA swats this justification away, however, by pointing out that Nash clearly establishes the admissibility of “inculpatory statements made after a defendant enters a plea but before the defendant is allowed to withdraw the plea […].” (¶25).
“Second, even if Rejholec’s decision to enter the no contest plea was related to the circuit court’s prior erroneous denial of his motion to suppress inculpatory interrogation statements, Rejholec’s allocution statements were voluntary and sufficiently attenuated from the constitutional violation that occurred during the interrogation so as to render the allocution statements admissible.” (¶26).
Finally, COA engages briefly with the circuit court’s finding that exclusion of the statements was necessary to avoid a “miscarriage of justice.” (¶28). COA is unmoved: “While the court presumably meant that it would be ‘a miscarriage of justice’ to allow introduction of Rejholec’s statements in light of his indication he would not have entered a plea at all—and therefore would not have made the allocution statements at issue—had the circuit court properly suppressed the inculpatory interrogation statements in the first place, this does not change the fact that Rejholec’s inculpatory allocution statements were voluntary.”(Id.).
In conclusion, while, COA acknowledges the harsh impact of its ruling, it holds that the result is compelled by existing precedent:
While Rejholec’s success in his first appeal may ring somewhat hollow from his perspective in light of our conclusion here given his indication that he would not have entered a plea at all had the circuit court properly suppressed the interrogation statements at the outset—and therefore would not have made the allocution statements at issue here as a result—we cannot make outcome-driven decisions but rather must apply the law as it exists.
(¶29).
A few concluding notes:
- Although Myrick is apparently an important case for the resolution of this appeal, a footnote reveals that the appellant–the State–only cited that authority in its reply brief. Although COA finds this somewhat “inexplicable,” it does not impact COA’s decision to find in favor of the State.
- A second footnote shows one possible complication caused by COA’s holding. As Rejholec argued in his brief, admission of his allocution statements at a subsequent trial will cause not only logistical headaches but will also imperil his right to present a defense “because the statute would prevent him from introducing evidence of the context in which his statements arose.” COA does not address this problematic implication of its decision, however, because it is bound to apply Myrick and Nash.
- Likewise, another footnote suggests another way in which this rule will complicate criminal cases. COA suggests that one way Rejholec could have avoided the problem is by seeking an interlocutory appeal of the court’s suppression ruling before accepting a plea and admitting guilt at a sentencing hearing. While that may be one solution for the bind litigants who lose suppression motions but who wish to take advantage of a favorable plea are now placed in, COA’s decision seems to promise (and in fact encourage) a new flood of interlocutory appeals–an outcome which cannot be desirous for our already overburdened system.
- Finally, it may be just our undying optimism, but we sense some palpable reluctance on COA’s part in reaching this outcome. COA frequently references the fact that its hands are tied, thereby seemingly inviting a petition for review. And, based on this decision, such a PFR would likely have substantial merit. To begin, as COA acknowledges, Justice Prosser’s dissent in Greve clearly anticipates this exact scenario and gives ample ammunition for Rejholec. Likewise, it is worth pointing out how alien Nash’s reading may sound to contemporary readers in a post-Kalal world where Justice Elena Kagan has conceded “We are all textualists now.” Nash leans heavily on foreign case law and statements of purpose and intent; meanwhile, COA repeatedly acknowledges, both here and in Nash, that the statutory language appears broad enough to justify Rejholec’s reading. One wonders, if COA was writing on a blank slate, whether it may have been tempted to use those textualist principles in favor of Rejholec. And, while it might be better for Rejholec if SCOW did not ratify Nash’s reading in 2014, the entire makeup of the Court has changed since then. By the time Rejholec’s petition is reviewed, Justice A.K. Ziegler will be the only remaining member of that panel. We will therefore watch the next stage of this appeal with interest!
