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COURT OF APPEALS DECISION DATED AND RELEASED August 20, 1996 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0873-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
WALTER RIECKHOFF,
Defendant-Appellant.
APPEAL from a judgment
and an order of the circuit court for Milwaukee County: DANIEL L. KONKOL, Judge. Affirmed.
CURLEY,
J. Walter Rieckhoff appeals from a judgment of conviction, on a no
contest plea, for operating a motor vehicle while under the influence of an
intoxicant. He also appeals from an
order denying his postconviction motion for a new trial. Rieckhoff raises essentially one issue for
review—whether the trial court erroneously exercised its discretion when it
denied his motion to withdraw his no contest plea based upon his claim of
newly-discovered evidence. The basis
for his motion was his post-sentencing discovery that the Intoxilyzer machine
utilized at the time of his arrest had not been serviced within the mandated
120-day period, thereby denying to the State an automatic admission of his
Intoxilyzer results. See
§ 343.305(5) and (6), Stats. Because Rieckhoff has failed to prove by
clear and convincing evidence that this newly-discovered information was likely
to lead to a different result, the trial court did not erroneously exercise its
discretion in denying his motion to withdraw his no contest plea. As a result, the judgment and order are
affirmed.[1]
I. Background.
The facts which surround
this controversy are as follows.
Rieckhoff was arrested on June 12, 1995, by City of Cudahy police. According to the complaint, the arresting
officer noticed that Rieckhoff had bloodshot eyes, slurred his speech, and had
an odor of intoxicants on his breath, leading the officer to conclude that
Rieckhoff was intoxicated.
Additionally, Rieckhoff failed field sobriety tests and admitted to
having consumed a pitcher and a half of beer.
The police reports referenced the fact that the police initially stopped
Rieckhoff for going sixteen miles over the speed limit. Rieckhoff was tested on the Intoxilyzer,
yielding a test result of .17 Blood Alcohol Concentration (BAC). He pleaded no contest to an operating a
motor vehicle while under the influence of an intoxicant charge and the trial
court dismissed a second charge for operating a motor vehicle with a prohibited
blood alcohol concentration. The trial
court then found him guilty on the one count and sentenced him.
After obtaining the
Intoxilyzer certifications through an open records request, Rieckhoff brought a
postconviction motion for a new trial, arguing that he should be allowed to
withdraw his plea because the Intoxilyzer had not been serviced within the
required 120 days, thereby defeating the automatic admission of his test
results. The trial court denied his
request, concluding that the fact that the results would not have been
automatically admissible did not merit a finding of “manifest injustice,”
requiring a plea withdrawal.
II. Analysis.
The trial court's decision regarding the
withdrawal of a plea of guilty or no contest is discretionary and will not be
upset on review unless there has been an erroneous exercise of discretion. State v. Spears, 147 Wis.2d
429, 434, 433 N.W.2d 595, 598 (Ct. App. 1988).
A post-sentencing motion for the withdrawal of a plea should only be
granted when necessary to correct a manifest injustice. State v. Duychak, 133 Wis.2d
307, 312, 395 N.W.2d 795, 798 (Ct. App. 1986).
A defendant has the burden of showing by clear and convincing evidence
that withdrawal of the plea is necessary to correct a manifest injustice. See State v. Schill, 93
Wis.2d 361, 383, 286 N.W.2d 836, 847 (1980) (citation omitted). The manifest injustice test is rooted in
concepts of constitutional dimension, requiring the showing of a serious flaw
in the fundamental integrity of the plea.
Libke v. State, 60 Wis.2d 121, 128, 208 N.W.2d 331, 335
(1973).
While it is true that
newly-discovered evidence may also create a “manifest injustice,” and therefore
require the trial court to grant the defendant's request to withdraw his plea,
for newly-discovered evidence to constitute a manifest injustice, the defendant
must show, at a minimum, the following criteria:
(1) the evidence was discovered after
trial; (2) the defendant was not negligent in seeking evidence;
(3) the evidence is material to an issue; (4) the evidence is not merely
cumulative to the evidence presented at trial; and (5) a reasonable probability
exists of a different result in a new trial.
State
v. Coogan, 154 Wis.2d 387, 394‑95, 453 N.W.2d 186, 188 (Ct.
App. 1990).
Following Rieckhoff's no
contest plea, the trial court ultimately found Rieckhoff guilty and sentenced
him for the crime of operating a motor vehicle while under the influence of an
intoxicant. A charge of a prohibited
blood alcohol concentration was dismissed as a result of Rieckhoff's plea to
the operating while under the influence of an intoxicant charge.
Rieckhoff's alleged
newly-discovered evidence consisted of the fact that the Intoxilyzer machine
had not been tested within 120 days.
The machine's certifications, however, did confirm that when it was
tested before and after the taking of Rieckhoff's test, it was in good working
order. Rieckhoff argues the automatic
admissibility of the test results has been compromised by the lack of a 120‑day
test, thereby giving him sufficient reason for him to be allowed to withdraw
his plea. The fact that the State
failed to comport to the requirements of § 343.305, Stats., however, does not necessarily
render the test results inadmissible.
In a case that explored
the admissibility of a chemical test result where there was noncompliance with
the implied consent procedure, the supreme court stated, “[I]f evidence is
otherwise constitutionally obtained, there is nothing in the implied consent
law which renders it inadmissible in a subsequent criminal prosecution.” State v. Zielke, 137 Wis.2d
39, 52, 403 N.W.2d 427, 433 (1987).
Hence, it is entirely
possible that, had there been a trial, the prosecutor would have been afforded
the opportunity to admit the chemical test results into evidence, despite the
lack of a mandated 120-day testing of the machine. Conceivably, this was more likely to occur here because the time
span between certification was only five months and the machine was in good
working order both before and after Rieckhoff's test, thereby potentially
undermining any attacks on the validity of Rieckhoff's test result.
Further, even assuming
that Rieckhoff's blood alcohol concentration results were inadmissible, it does
not follow that this would be sufficient to require a plea withdrawal. Unlike a charge of operating with a
prohibited blood alcohol concentration, a charge of operating while under the
influence of an intoxicant can be proven without an Intoxilyzer test result.
In this case there was
ample other evidence of Rieckhoff's intoxication besides the Intoxilyzer test
results. The police report reflects
that after Rieckhoff was stopped for speeding and failed the field sobriety
tests, he was observed with bloodshot eyes, with an odor of intoxicants on his
breath, and with slurred speech.
Rieckhoff also admitted to having consumed a large amount of beer before
being arrested. All of this
incriminating evidence was in addition to the Intoxilyzer test results which
were above the legal limit for blood alcohol concentration. Had the State been unable to introduce the
Intoxilyzer test results, there was additional evidence to support the
operating while under the influence of an intoxicant charge. As a consequence, it is clear that Rieckhoff
did not meet his burden of proof that “a reasonable probability exists of a
different result in a new trial.” Coogan,
154 Wis.2d at 394‑95, 453 N.W.2d at 188.
In sum, the trial court
considered the newly-discovered evidence, applied the appropriate factors and
concluded that the defendant had not met his burden of showing a manifest
injustice requiring a post-sentencing withdrawal of his plea. This was a reasonable exercise of the trial
court's discretion. See Spears,
147 Wis.2d at 434, 433 N.W.2d at 598.
By the Court.—Judgment
and order affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)4, Stats.