Opinion
2022AP172-CR
05-02-2023
State of Wisconsin, Plaintiff-Respondent, v. Zachary J. Larson, Defendant-Appellant.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3) .
APPEAL from a judgment of the circuit court for Pierce County Cir. Ct. No. 2016CF15: JOSEPH D. BOLES, Judge.
Before Stark, P.J., Hruz and Gill, JJ.
PER CURIAM.
¶1 Zachary J. Larson appeals from a judgment convicting him, upon his guilty plea, of first-degree sexual assault of a child (sexual contact with a person under age thirteen). Larson contends that the circuit court erroneously denied his presentence motion for plea withdrawal without an evidentiary hearing. His motion alleged newly discovered evidence as a fair and just reason for withdrawing his plea. We conclude that Larson is entitled to an evidentiary hearing because his motion alleges sufficient facts that, if true, would entitle him to the relief he seeks. Accordingly, we reverse and remand to the circuit court for an evidentiary hearing.
BACKGROUND
¶2 According to the criminal complaint, nine-year-old Lucy told law enforcement that then-sixteen-year-old Larson had sexually assaulted her in October 2015 when she was spending the night at his home. Lucy participated in a forensic interview in which she alleged that Larson "told [her] he wanted to 'F someone.' [Lucy] asked [Larson] what that means and he replied 'I want to put my D in someone.'" According to Lucy, Larson then "began to pull down her pants and underwear." Lucy stated that Larson attempted to insert his penis into her vagina and rectum, he "used his hands to grab and squeeze her butt and breast," and he forced Lucy to "grab ahold of his penis." Larson informed Lucy "that he was going to hurt her if she told anybody." Approximately one week later, Lucy reported the assault.
Pursuant to the policy underlying Wis.Stat. Rule 809.86(4) (2021-22), we use pseudonyms when referring to the victim and a witness in this case. All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise noted.
¶3 Initially, the State charged Larson-who had by then turned seventeen-with one count of first-degree sexual assault of a child (sexual contact with a person under age thirteen). Larson agreed to enter a plea, which involved a deferred judgment of conviction agreement (DJOC). Per the DJOC, Larson would plead guilty to the first-degree sexual assault of a child charge, but prosecution of the charge would be withheld for five years, provided that Larson complied with the agreed-upon conditions. If he successfully completed the DJOC, the State would dismiss the charge. As part of the agreement, Larson also agreed to plead guilty to an additional charge of fourth-degree sexual assault of a child in the instant case and to felony bail jumping in a separate case.
¶4 In May 2018, after a plea colloquy, the circuit court determined that Larson had knowingly, intelligently, and voluntarily entered his pleas. The court accepted Larson's plea to first-degree sexual assault, withheld judgment, and approved the terms of the DJOC. The court also accepted Larson's pleas to the fourth-degree sexual assault and felony bail jumping charges, ordered him convicted of these offenses, withheld sentence on them, and placed Larson on three years' probation, with the possibility of expungement.
¶5 Larson subsequently violated both the terms of the DJOC and the conditions of his probation. As a result, the State moved to revoke the DJOC, which the circuit court granted. Larson's probation was also revoked.
¶6 Prior to sentencing, Larson moved to withdraw his plea to the first-degree sexual assault charge. He alleged multiple bases for relief, including, as relevant to this appeal, newly discovered evidence. The evidence related to statements Lucy allegedly made to a family member on the night of the assault as well as statements from Lucy's mother that Lucy had accused other individuals of sexual assault and had recanted her accusation against Larson. The State opposed the motion, and the circuit court denied it without a hearing. The court concluded that Larson's "claim of 'newly discovered evidence' [did] not pass muster" as it was "a hearsay attack on the credibility of the 9 year old victim by people who were not in the room where the crime was committed."
¶7 The circuit court thereafter held a sentencing hearing. The court sentenced Larson to five years' initial confinement followed by ten years' extended supervision on the first-degree sexual assault charge. Larson appeals.
DISCUSSION
¶8 As noted above, Larson alleged multiple claims for relief in his original motion before the circuit court; however, on appeal, he renews only his claim based on newly discovered evidence. Larson asserts that he is entitled to an evidentiary hearing on that issue. For the reasons that follow, we agree.
¶9 In this case, the circuit court denied Larson's presentence motion for plea withdrawal without an evidentiary hearing. Accordingly, "[w]e are guided by a mixed standard of appellate review." State v. Ruffin, 2022 WI 34, ¶26, 401 Wis.2d 619, 974 N.W.2d 432. A circuit court is required to hold an evidentiary hearing on a motion only when the defendant alleges "sufficient material facts that, if true, would entitle the defendant to relief." State v. Allen, 2004 WI 106, ¶¶9, 14, 274 Wis.2d 568, 682 N.W.2d 433. The motion must "allege the five 'w's' and one 'h'; that is, who, what, where, when, why, and how" of the defendant's claims. Id., ¶23. If, however, "the motion does not raise facts sufficient to entitle the movant to relief, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the circuit court has the discretion to grant or deny a hearing." Id., ¶9. When a motion is denied without an evidentiary hearing, we review de novo "whether the motion on its face alleges sufficient material and non-conclusory facts that, if true, would entitle the defendant to relief" and "[w]hether the record conclusively demonstrates that the defendant is not entitled to relief." State v. Jackson, 2023 WI 3, ¶8, 405 Wis.2d 458, 983 N.W.2d 608; Ruffin, 401 Wis.2d 619, ¶27.
¶10 Larson's claim arises in the context of plea withdrawal prior to sentencing. While "[w]ithdrawal of a guilty plea before sentencing is not an absolute right," the "circuit court should 'freely allow a defendant to withdraw his [or her] plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced.'" State v. Lopez, 2014 WI 11, ¶61, 353 Wis.2d 1, 843 N.W.2d 390 (third alteration in original; citations omitted). "'[T]he burden is on the defendant to offer a fair and just reason for withdrawal of the plea' by a preponderance of the evidence." Id. (alteration in original; citation omitted). "[O]nce the defendant presents a fair and just reason, the burden shifts to the State to show substantial prejudice so as to defeat the plea withdrawal." Id. (alteration in original; citation omitted).
The State does not argue that it would suffer substantial prejudice as a result of plea withdrawal; therefore, we do not address this issue further.
¶11 As relevant here, newly discovered evidence may constitute a "fair and just reason" to withdraw a guilty plea where the defendant can demonstrate 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). In addition to these four criteria, when the newly discovered evidence is a witness's recantation, the circuit court must determine that the recantation has reasonable indicia of reliability. Id. at 295.
¶12 We will sustain a circuit court's decision to deny a motion to withdraw a plea unless the court erroneously exercised its discretion. State v. Jenkins, 2007 WI 96, ¶30, 303 Wis.2d 157, 736 N.W.2d 24. "All that 'this court need find to sustain a discretionary act is that the circuit court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.'" Id. (citation omitted).
¶13 On appeal, Larson claims that three items of newly discovered evidence entitle him to both an evidentiary hearing on his motion and withdrawal of his plea. First, his motion asserted that Larson's half-brother, Caleb, told a defense investigator that "during the day of the incident[,] [Lucy] made comments about having sex with her sister while at her father's house [and] looking at pornography with her brother." Applying the newly discovered evidence standards, Larson argues that because successor defense counsel hired an investigator who discovered this evidence, Caleb's statement was "discovered after entry of the plea" and Larson was not "negligent in seeking the evidence." Larson further asserts that the evidence was "material to an issue in the case" because Lucy's "sexual comments suggest that [her] sexual knowledge was based on exposure to sexual imagery and sexual contact with other family members, and not as a result of Larson sexually assaulting her." See State v. Pulizzano, 155 Wis.2d 633, 649, 456 N.W.2d 325 (1990). Finally, he claims that the evidence was not "merely cumulative" because there was no evidence presented in the complaint that Lucy made these or similar claims at the time.
¶14 The State-in addition to arguing that Larson presented "only conclusory facts"-asserts that Caleb's statement fails to meet the test for newly discovered evidence because the information was available at the time of Larson's plea. We agree that Larson has failed to establish that Caleb's statement was newly discovered evidence.
¶15 Larson admits that he knew prior to entering his plea that Caleb was in the house on the day of the alleged assault and that he knew Caleb and Lucy had spent time together. Thus, Larson knew that Caleb may have relevant information about the night of the assault, and that information was available to Larson prior to entering his plea. See State v. Fosnow, 2001 WI.App. 2, ¶16, 240 Wis.2d 699, 624 N.W.2d 883 (2000) (noting that "evidence forming the basis for a possible defense of lack of criminal responsibility … existed and was available to the defendants or their counsel prior to conviction and sentencing" and that that defendant's motion proffered "'the newly discovered importance of existing evidence,' rather than newly discovered evidence" (citation omitted)). In response, Larson argues that "[i]t does not follow that just because Larson knew [Lucy] and [Caleb] were together that day, that Larson would also know that [Lucy] would have made such a disturbing comment suggesting that she had been subjected to sexual abuse by a family member." This argument strikes us as a claim that Larson belatedly became aware of the "importance of existing evidence," rather than that the evidence was newly discovered. Id.; see also State v. Vennemann, 180 Wis.2d 81, 98, 508 N.W.2d 404 (1993) ("Though Vennemann may have been unaware of the exact testimony each witness would give, the evidence was in existence at the time of the trial.").
¶16 To the extent Larson is suggesting that his initial defense counsel was negligent for failing to interview Caleb or obtain an investigator to interview him prior to Larson's plea, we note that Larson does not assert an ineffective assistance of counsel claim. Further, as both the State and Larson acknowledge, "[t]he test is not what counsel knows or is aware of, but what his or her client is or should be aware of." State v. Williams, 2001 WI.App. 155, ¶12, 246 Wis.2d 722, 631 N.W.2d 623, overruled on other grounds by State v. Morford, 2004 WI 5, 268 Wis.2d 300, 674 N.W.2d 349. Larson asserts that "any negligence by prior counsel for not causing [Caleb] to be interviewed cannot be imputed to Larson," but Larson fails to explain how he was not negligent in seeking the evidence that he knew was available. Accordingly, the circuit court did not err by refusing to hold an evidentiary hearing and allow Larson to withdraw his plea based on Caleb's statement.
To the extent the State makes other arguments for why Caleb's statement does not satisfy the newly discovered evidence test, we do not address them. An appellate court need not address every issue raised by the parties when one issue is dispositive. See Sweet v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983).
¶17 The second and third items of newly discovered evidence are similar, and we will therefore discuss them together. Larson's presentence motion alleged that Lucy's mother contacted the district attorney's office in May 2019 to inform them that "Lucy told a friend that the sexual assault by Mr. Larson did not occur and [Lucy] wanted to see what would happen." Lucy's mother also "received both text messages and verbal assertions from [Lucy] that she falsely accused" Larson. Further, Lucy's mother "confirmed that [Lucy] has accused four (4) other people of sexual assault, specifically the same types of accusations" made against Larson.
We will refer to this evidence collectively as "recantation evidence."
We will refer to this evidence as "other-accusations evidence."
¶18 Concerning the newly discovered evidence test, Larson explains that successor defense counsel learned all this information from Lucy's mother a year after she had contacted the district attorney's office. Thus, Larson claims the evidence was clearly discovered after his plea, and, as the events occurred after the plea, he was not negligent in failing to discover the evidence earlier. As to the other-accusations evidence, Larson argues that the evidence is material because it "could suggest that [Lucy's] accusations reflect attention-seeking behavior, impeaching [Lucy's] credibility. More importantly, [this evidence] can suggest that [Lucy] was the victim of a sexual assault, and wanted to tell someone about it, but that it was easier to blame the 16-year-old Larson than the adult perpetrator."Further, Larson states that there was nothing in the pleadings to suggest that this evidence would be cumulative. As to the recantation evidence, Larson notes that "recantation by its nature generally satisfies [the newly discovered evidence] criteria." See Kivioja, 225 Wis.2d at 294.
In fact, Lucy was the alleged victim of another sexual assault. In response to Larson's motion, the State included a copy of a Minnesota criminal complaint, which stated that Lucy's mother's fiancé had sexually assaulted Lucy when she was also nine or ten years old.
¶19 In response, the State argues that the other-accusations evidence is inadmissible both as hearsay, see Wis. Stat. § 908.01(1)-(3), and under the rape shield law, see Wis. Stat. § 972.11(2)(b), and therefore the evidence is immaterial. The State similarly claims that the recantation evidence is not a recantation because Lucy "has never recanted. All Larson has is [Lucy's] mother's hearsay account that [Lucy] allegedly recanted." Thus, the recantation evidence is inadmissible hearsay and, likewise, immaterial. Aside from arguing that the evidence fails on the materiality prong of the newly discovered evidence test based on its inadmissibility, the State does not otherwise argue a separate basis to find that the evidence does not satisfy the other prongs of the test.
¶20 We disagree with the State's assertion that Larson's presentence motion was properly denied because the evidence would be inadmissible. Our supreme court has previously explained that "a movant need not demonstrate the admissibility of the facts asserted in the postconviction motion, but rather must show sufficient objective material factual assertions that, if true, would warrant the movant to relief." State v. Love, 2005 WI 116, ¶¶36, 50, 284 Wis.2d 111, 700 N.W.2d 62. Thus, Larson was not required to "demonstrate theories of admissibility for every factual assertion" he made in his motion. See id., ¶36. Further, as Larson noted, admissibility of evidence under the circumstances presented in this case "is a highly fact-specific inquiry that requires a balancing of many interests, and cannot be resolved on the basis of a presentence motion." See Pulizzano, 155 Wis.2d at 648-55; see also State v. Harris, 2004 WI 64, ¶¶24-39, 272 Wis.2d 80, 680 N.W.2d 737 (holding that the defendant was not required to show that improperly withheld discovery was admissible under the rape shield law and that "the prosecutor here should have disclosed the evidence and let the circuit court determine its admissibility"). We agree with Larson that "it is at the evidentiary hearing that details and theories of admissibility are addressed."
¶21 To the State's point that Lucy herself has never recanted, Larson was not provided an opportunity to call Lucy to testify at an evidentiary hearing where (depending on her testimony) the circuit court could have considered her credibility and other bases for admissibility of her alleged recantation. The court essentially agreed with the State, noting in its written decision that "[t]here [are] no sworn statements that would in any way support a claim that the victim recanted." However, Larson was not required to submit affidavits in support of his plea withdrawal motion; he needed only to allege sufficient facts that, if true, would entitle him to relief. See Allen, 274 Wis.2d 568, ¶9; State v. Brown, 2006 WI 100, ¶62, 293 Wis.2d 594, 716 N.W.2d 906. Thus, the other-accusations evidence and the recantation evidence do not fail the newly discovered evidence test simply because there are questions regarding the potential admissibility of that evidence.
¶22 The State also claims that even if the recantation evidence could satisfy the four-prong test for newly discovered evidence, Larson has failed to demonstrate that the recantation evidence has reasonable indicia of reliability. See Kivioja, 225 Wis.2d at 295. As our supreme court explained in Kivioja, recantation evidence is "inherently unreliable"; thus, the circuit court should look to "assurances of trustworthiness." Id. at 292, 296. "Assurances of trustworthiness can include the spontaneity of the statement, whether the statement is corroborated by other evidence in the case, the extent to which the statement is self-incriminatory and against the penal interest of the declarant, and the declarant's availability to testify under oath and subject to cross-examination." Id. at 296-97. The State claims that "Larson made no attempt to demonstrate reliability."
¶23 We agree with Larson's assertion that the State "mistakes the defendant's obligation to produce credible evidence supporting a newly discovered evidence claim at an evidentiary hearing as some kind of authority for the [circuit] court to make credibility determinations based on the motion itself." The State relies almost entirely on Kivioja in support of its position that Larson failed to produce evidence of reliability. However, as Larson observes, the issue in Kivioja was not whether the defendant was entitled to an evidentiary hearing- an evidentiary hearing had been held. Id. at 274. The question instead was whether the circuit court erred when it-rather than a jury-made determinations as to the plausibility and credibility of the evidence in support of the motion for plea withdrawal. Id. at 287-90. In affirming the circuit court's credibility evaluation, our supreme court reiterated that "an evidentiary hearing on whether a defendant has presented a fair and just reason for a plea withdrawal is necessary to resolve 'issues of fact and credibility.'" Id. at 289-90 (citation omitted). Thus, we agree that nothing in the court's discussion in Kivioja mandates that a defendant must pre-prove the reliability of recantation evidence in his or her motion for plea withdrawal.
¶24 In reviewing Larson's motion, we conclude that he sufficiently pled is claim of newly discovered evidence related to Lucy's mother's statements- both with regard to the other-accusations evidence and the recantation evidence. See Allen, 274 Wis.2d 568, ¶23 (motion must specifically allege who, what, where, when, why, and how). It is clear from the circuit court's decision that it did not consider the assertions in Larson's motion to be credible or admissible. We acknowledge that in the court's review of "a fair and just reason," the defendant must also "show that the reason actually exists," and, accordingly, the "court must engage in some credibility determination of the proffered reason." Kivioja, 225 Wis.2d at 291; see also Jenkins, 303 Wis.2d 157, ¶43 ("In other words, the circuit court must believe that the defendant's proffered reason actually exists."). However, given that Larson's motion alleged sufficient material facts that, if true, would entitle him to relief, the proper procedure is to hold a hearing to resolve these evidentiary and credibility issues. See Allen, 274 Wis.2d 568, ¶12 n.6; see also State v. Leitner, 2001 WI.App. 172, ¶34, 247 Wis.2d 195, 633 N.W.2d 207 ("When facts are in dispute and credibility is an issue, live testimony is generally preferable.").
We note also that the circuit court's written decision fails to cite the legal standard for presentence plea withdrawal motions. See State v. Lopez, 2014 WI 11, ¶61, 353 Wis.2d 1, 843 N.W.2d 390 ("any fair and just reason"). Thus, we are unable to determine whether the court applied a proper standard of law.
¶25 Given our standard of review, the preference that a hearing be granted under the circumstances, and Larson's claims, we conclude that the circuit court erred in denying Larson a hearing on his presentence motion for plea withdrawal, as it relates to the other-accusations and recantation evidence. Larson presented evidence discovered after his plea that he was not negligent in failing to discover prior to his plea. If true, the evidence is material to Lucy's credibility and sexual knowledge, and it is not cumulative. While we take no position at this time on whether Larson's motion for plea withdrawal should ultimately be granted, we see nothing in the record before us on appeal that conclusively demonstrates that Larson is not entitled to relief. Therefore, we reverse and remand to the circuit court for an evidentiary hearing on Larson's motion for presentence plea withdrawal related to the other-accusations evidence and the recantation evidence.
Judgment reversed and cause remanded with directions.