In opinion recommended for publication, COA holds defendant is not judicially estopped from raising newly discovered evidence claim due to guilty plea and clarifies NDE test for plea withdrawal
State v. Scott R. Shallcross, 2023AP362, 10/7/25, District I (recommended for publication); case activity (including briefs)
This appear arises from Shallcross’s Wis. Stat. § 974.06 postconviction motion, in which he sought to withdraw his guilty pleas based on newly discovered evidence. Shallcross, pro se, argues on appeal that the state committed a Brady violation, and the circuit court should have analyzed his motion as a Brady claim. The state argues that Shallcross is judicially estopped from arguing that he was not responsibible because he admitted as much by pleading guilty, and that the new evidence is not exculpatory under Brady. COA holds that Shallcross is not judicially estopped from raising his plea withdrawal claim based on newly discovered evidence, but agrees with the state that the claim fails under Brady and the newly discovered evidence test.
The state charged Shallcross with various crimes after a car crash that killed two occupants in another car. The complaint alleged that Shallcross was driving his friend, Daniel Gorectke’s car at the time of the accident. Gorectke was a passenger in the car during the accident. Gorectke told police that moments after the accident, Shallcross crawled from the driver’s seat to the back seat and told Gorectke to tell police that there was an unknown third person driving the vehicle. The complaint also alleged that Shallcross confessed to crawling into the backseat after the crash. (¶¶8-9). Shallcross pleaded guilty to two counts of homicide by intoxicated use a vehicle and, during the plea colloquy, stipulated to the facts alleged in the complaint. (¶10).
Shallcross pursued “extensive postconviction litigation” before filing the § 974.06 motion underlying this appeal. (¶2). In the 974.06 motion, Shallcross identified a DNA report that shows the presence of an unidentified third person’s DNA on the steering column airbag of Gorectke’s car, and argued that the third person was driving the car. (¶12). The circuit court rejected the state’s argument that Shallcross was judicially estopped from arguing he was not the driver, reasoning that it would contradict State v. Ferguson, 2014 WI App 48, 354 Wis. 2d 253, 847 N.W.2d 900. The court then held an evidentiary hearing on the DNA report claim, and concluded the report was not exculpatory, so Shallcross would not have entered a plea and would have insisted on going to trial had the evidence been available at the time. (¶14). Shallcross appealed, pro se.
COA addresses the following three issues:
Judicial estoppel
On appeal, the state again argues that Shallcross is judicially estopped from arguing that he was not driving Gorectke’s vehicle because he admitted to doing so when he pleaded guilty. (¶¶16, 18). Appellate courts review the circuit court’s decision wehther to apply judicial estoppel under the erroneous exercise of discretion standard. COA declines to impose a rule that requires circuit courts to apply judicial estoppel where a defendant bases a motion for plea withdrawal on newly discovered evidence that contradicts a fact admitted to as a consequence of pleading guilty because doing so would be “incompatible with our case law allowing newly discovered evidence as the basis for withdrawing a guilty plea.” (¶19).
COA then discusses its decision in Ferguson, which the circuit court relied on in declining to apply judicial estoppel here. In Ferguson, COA applied the newly discovered evidence test where Ferguson sought to withdraw his guilty plea based on newly discovered recantation evidence that contradicted a fact to which he admitted when he pleaded guilty (i.e., shooting the victim). (¶20). COA agrees with the state that Ferguson does not discuss judicial estoppel, but concludes the circuit court did not erroneously exercise its discretion by relying on the opinion for its refusal to apply judicial estoppel because the controlling case law allows defendants to move to withdraw their pleas based on newly discovered evidence that would tend to negate a fact to which he or she admitted by pleading guilty. (¶¶21-24).
Brady claim
Shallcross argues that the circuit court should not have applied the McCallum test for plea withdrawal based on newly discovered evidence and instead should have analyzed his motion as asserting a Brady claim. (¶25). Shallcross claimed that the DNA report supported his assertion that a third person, seen running from the scene but who was not seen exiting the vehicle, was the driver. However, while the report showed the presence of Shallcross’s, Gorectke’s, and a third individual’s DNA on the steering column airbag, only Shallcross’s blood was present on the driver’s side airbag. (¶27). The court concludes that the report actually helps prove that Shallcross was driving at the time of the accident because “[o]nly Shallcross’s blood was found on both driver’s side airbags[.]” Accordingly, COA rejects Shallcross’s Brady claim because the DNA report was not exculpatory. (¶29).
Newly discovered evidence claim
Next, COA addresses whether the DNA report constitutes newly discovered evidence justifying withdrawal of Shallcross’s guilty pleas. (¶30). The following criteria must be met for newly discovered evidence to constitute a manifest injustice:
First, the defendant must prove, by clear and convincing evidence that: (1) the evidence was discovered after conviction; (2) the defendant was not negligent in seeking evidence; (3) the evidence is material to an issue in the case; and (4) the evidence is not merely cumulative. If the defendant proves these four criteria by clear and convincing evidence, the circuit court must determine whether a reasonable probability exists that a different result would be reached in a trial.
State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997). Here, COA assumes without deciding that Shallcross met the first four criteria and focuses on whether a reasonable probability exists that a different result would be reached in a trial.
COA first highlights the state’s request that it apply the standard plea withdrawal test of “whether it is reasonably probable the defendant would have rejected the plea agreement and gone to trial but for the alleged error” instead, and states that the argument “has merit.” (¶¶32-33). No controlling authority has explained why the test is different when plea withdrawal is based on newly discovered evidence. (¶34). However, McCallum explicitly held that the same rule (i.e. the different result at trial) applies regardless of whether the defendant seeks plea withdrawal or a new trial on a newly discovered evidence claim. COA is bound by this precedent. (¶34).
The court then applies that standard and determines that, having asked whether Shallcross would have insisted on going to trial had he known about the DNA report prior to his plea, the circuit court applied the incorrect standard. Thus, the circuit court erroneously exercised its discretion. (¶35). Next, COA determines that it need not remand the case for a new exercise of discretion. (¶¶36-37). Although the McCallum court did so, it explained that remand was the “wiser course,” under the specific facts of the case, because “[r]ecantation, by its very nature, calls into question the credibility of the witness or witnesses … and the circuit court judge is in a much better position” to resolve whether the recantation would raise a reasonable doubt in the minds of a jury. (¶38).
This case, on the other hand, does not require a credibility determination. (¶39). COA concludes that “the overwhelming evidence of Shallcross’s guilt compels the conclusion that there is not a reasonable probability that a jury would have a reasonable doubt as to Shallcross’s guilt if it were presented with more inculpatory evidence,” as it determined the DNA report supports his guilt. (¶40).
COA therefore affirms the circuit court’s denial of Shallcross’s motion to withdraw his pleas.