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Plea-Withdrawal – Hearing – Exculpatory Evidence

State v. William M. O’Donnell, 2009AP2962, District 2, 11/17/10

court of appeals decision (1-judge, not for publication); for O’Donnell: Walter Arthur Piel, Jr.; O’Donnell BiC; State Resp.; Reply

Because the evidence allegedly suppressed by the State wasn’t exculpatory, O’Donnell wasn’t entitled to an evidentiary on his postconviction motion asserting suppression of exculpatory material.

¶10      A circuit court, in its discretion, may deny a postconviction motion without holding a hearing if the defendant fails to allege sufficient facts in his or her motion to raise a question of fact or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief. See State v. Bentley, 201 Wis. 2d 303, 309-10, 548 N.W.2d 50 (1996).  In addition, when a defendant seeks to withdraw a guilty plea on the ground that the prosecutor withheld exculpatory evidence, he or she must demonstrate that (1) exculpatory material in the possession of the prosecutor was withheld, (2) this constitutional violation caused him or her to plead guilty, and (3) he or she was unaware of the potential constitutional challenge at the time he or she entered the guilty plea.  See State v. Sturgeon, 231 Wis. 2d 487, 496, 605 N.W.2d 589 (Ct. App. 1999).  Thus, “the relevant inquiry is whether there is a reasonable probability that, but for the failure to disclose, the defendant would have refused to plead and would have insisted on going to trial.”  Id. at 503-04.

¶11      Here, O’Donnell asserts two facts that he believes are sufficient and material and entitle him to relief:  (1) his counsel failed to find the email in the State’s file thus depriving him of due process and (2) the State failed to disclose the email, creating a Brady violation.  Both of these assertions are premised on the email being exculpatory; however, the email is, at best, ambiguous.  Moreover, as the circuit court noted prior to O’Donnell’s plea entry, it was O’Donnell who submitted Kaye’s original affidavit contradicting the criminal complaint and detailing a version of events favorable to his defense.  Thus, even if one could attribute any exculpatory innuendo to the December 6 email, at the time of his plea, O’Donnell possessed knowledge of Kaye’s initial concerns regarding the allegations in the criminal complaint.  Further,O’Donnell’s postconviction motion fails to set forth with any specificity why his lack of knowledge as to the existence of this ambiguous email caused him to enter a plea, especially when he was aware of the potential existence of email evidence prior to his plea entry.

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