Wisconsin Court of Appeals rejects argument that would prohibit newly discovered evidence from negating a guilty plea

By Alexandria Staubach

A recent decision from the Wisconsin Court of Appeals rejected the State’s application of judicial estoppel to a case evaluating a motion to withdraw a plea, where the plea included an admission of guilt on the record.

Judicial estoppel is a legal doctrine that can be argued as a defense by one party or applied by the court. It prevents the party from taking a position directly contrary to a position they previously argued in a separate court proceeding. It prevents parties from making inconsistent statements to gain an unfair advantage.

The decision declines to impose a rule that would require circuit courts to bar a defendant’s argument to withdraw a plea based on newly discovered evidence, when that evidence contradicts a fact that the defendant necessarily admitted because of pleading guilty.

The District 1 decision was authored by Judge Sara J. Geenen and joined by Presiding Judge Pedro A. Colón and Chief Judge Maxine White.

According to the opinion, Scott R. Shallcross pleaded guilty to two counts of homicide by intoxicated use of a vehicle after his truck slammed into another truck, killing its two occupants. Shallcross and his passenger, Daniel Gorectke, survived.

The complaint, referenced by the court, stated that Shallcross told police he was the driver, but he wasn't in the driver's seat when police arrived because he had crawled to the back of the truck immediately following the crash as the vehicle was on fire.

Gorectke also gave a statement to the police and identified Shallcross as the driver. However, Gorectke  also told police that Shallcross told him to tell police an unknown third person was driving the truck.

In 2009, Shallcross accepted a plea agreement in the case, admitting on record that he was the driver of the truck. Before sentencing, he told the court that he was driving the truck.

In 2022, Shallcross filed this appeal, arguing that evidence unknown at the time of his plea required the circuit court to allow him to withdraw his plea.

Among the newly discovered evidence was DNA obtained from the steering column airbag of the truck that showed Shallcross's DNA and that of an unknown third party.

The additional third-party DNA supported the argument that a third party was driving the truck, Shallcross said.

According to the opinion, in circuit court the state argued that Shallcross was judicially stopped from claiming that he was not the driver of the truck, and that “no case allow(s) a defendant to unequivocally admit at a plea hearing that he committed an act and turn around at a later court hearing and unequivocally deny under oath that he committed that same act.”  

The problem with the state’s argument, according to the appellate court, is the regular use of a test applied to newly discovered evidence in motions to withdraw guilty pleas, as found in cases like State v. Ferguson.

The defendant in Ferguson sought to withdraw his guilty plea based on newly discovered evidence, namely that the principal witnesses subsequently recanted their identification of Ferguson. The Ferguson court applied the newly discovered evidence test, not judicial estoppel.

“Under the State’s rule, it would be an erroneous exercise of discretion for a circuit court to refuse to apply judicial estoppel,” a circumstance that is inconsistent with the application of the newly discovered evidence test found in Ferguson, wrote Geenen.

“The State’s argument that the circuit court erroneously exercised its discretion by refusing to apply judicial estoppel in this case leads to the conclusion that defendants may never seek to contradict a fact admitted to as consequence of pleading guilty,” Geenen concluded.

Further, “after determining that the evidence is newly discovered evidence, the test is whether a jury would have a reasonable doubt as to the defendant’s guilt in a trial that included the newly discovered evidence,” said that court.

Ultimately, the weight of the evidence in Shallcross’ case doomed his motion to withdraw his plea. “There is no reasonable probability that a jury would have a reasonable doubt as to Shallcross’s guilt if it was presented with the DNA report,” wrote Geenen. She said “the overwhelming evidence” of Shallcross’s guilt compelled the court's conclusion.