author: JON E WILCOX, J. JON E WILCOX, J.

text:
    State of Wisconsin, Plaintiff-Appellant-Petitioner, v. Kevin Harris, Defendant-Respondent.
    Supreme Court

      No. 02-2433-CR.

      Oral argument February 11, 2004.

    Decided June 8, 2004.

    2004 WI 64
    (Also reported in 680 N.W.2d 737.)

      Wilcox, J., concurs.
    Sykes, J., took no part.
    For the plaintiff-appellant-petitioner the cause was argued by Sally L. Wellman, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general.
    For the defendant-respondent there was a brief by Steven A. Koch and Seymour, Kremer, Nommensen, Morrissy & Koch, L.L.P., Elkhorn, and oral argument by Steven A. Koch.

   JON E WILCOX, J.

¶ 1. The State appeals from a published court of appeals decision, State v. Harris, 2003 WI App 144, 266 Wis. 2d 200, 667 N.W.2d 813, which affirmed an order of the Walworth County Circuit Court, Michael S. Gibbs, Judge, granting the motion of the defendant, Kevin Harris (Harris), to withdraw his guilty plea to a charge of first-degree sexual assault of a child. The circuit court granted the defendant's motion for plea withdrawal on the basis that the State had violated his due process right to receive exculpatory evidence when it failed to disclose that the alleged victim reported being sexually assaulted by her grandfather on a different occasion.

I. ISSUES

¶ 2. The issues on appeal are: 1) whether the State violated Harris's right to due process under the state and federal constitutions by failing to disclose, before entering into a plea bargain with him, that the alleged victim reported being sexually assaulted by her grandfather on a different occasion; 2) whether this nondisclosure violated Wis. Stat. § 971.23 (2001-02), Wisconsin's reciprocal discovery statute; and 3) whether Harris is entitled to withdraw his plea if either violation is present. We hold that the State did not violate Harris's right to due process because, pursuant to United States v. Ruiz, 536 U.S. 622 (2002), due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain. However, we determine that B.M.M.'s allegation against her grandfather is the type of information the State was required to disclose pursuant to § 971.23(l)(h) because it constitutes evidence favorable to the accused whose nondisclosure undermines our confidence in the judicial proceeding. This information is favorable to the accused because it constitutes impeachment evidence that casts doubt on the credibility of the State's primary witnesses. The nondisclosure of this evidence undermines our confidence in the outcome of the judicial proceeding because Harris would not have pled guilty but for the nondisclosure of this evidence. We further hold that in order to comply with the mandate in § 971.23(1) that such information must be turned over within a reasonable time before trial, the State was obligated to disclose this evidence at a point when Harris would have had sufficient time to make effective use of the information. As Harris entered his plea bargain within two weeks prior to the date on which his trial was scheduled to commence, the State should have disclosed the suppressed evidence by at least this point in the proceedings in order for Harris to be able to effectively use it. Given that 1) the evidence of B.M.M.'s allegation was the type of evidence required to be disclosed under § 971.23(l)(h); 2) the State did not disclose this evidence within a reasonable time before trial; and 3) Harris would not have pled guilty but for this nondisclosure, Harris has demonstrated that a withdrawal of his plea is necessary to avoid a manifest injustice. Therefore, we affirm the court of appeals' decision.

II. FACTUAL BACKGROUND

¶ 3. Harris is a 31-year-old man with an eighth grade education who has a history of serious mental illness. The State filed a criminal complaint against Harris on April 24, 2001, alleging that he had sexual contact with B.M.M., a person who had not yet attained the age of 13, contrary to Wis. Stat. § 948.02(1), and violated the conditions of his bond on a previous matter, contrary to Wis. Stat. § 946.49(l)(a). The State further alleged that Harris was a repeat offender as to count one. See Wis. Stat. § 939.62(l)(c). Subsequently, the State filed an information on May 2, 2001, alleging the same. The complaint alleged that Harris touched six-year-old B.M.M. on her vaginal area over her clothing. The complaint also alleged that Harris admitted to Detective Ray Otto of the Elkhorn Police Department that on April 11, 2001, he had brought B.M.M. into his apartment and that he kissed her head and patted her on the leg but denied touching her in an inappropriate manner.

¶ 4. On May 2, 2001, Harris waived his preliminary hearing and pled not guilty to each of the two counts in the complaint. A jury trial was set for August 6-8, 2001. Harris filed a discovery demand with the court on May 30, 2001, whereby he demanded that the State provide, inter alia, "[a]ll exculpatory evidence ... that could form the basis for further investigation by the defense." On June 5, 2001, after substituting counsel, Harris changed his plea to not guilty by reason of mental disease or defect (NGI) and Judge James L. Carlson ordered a psychiatric evaluation. On July 11, 2001, the State gave notice to Harris that it intended to call up to two expert witnesses to testify as to reactive behaviors common among child sexual abuse victims. Thereafter, on July 25, 2001, approximately two weeks before trial, the psychiatric evaluation not supporting his NGI plea, Harris entered into a plea agreement with the State. Harris agreed to plead guilty to count one (first-degree sexual assault of a child as a repeater) and the State agreed to dismiss and read in count two (bail jumping). In addition, the State agreed to dismiss and read in Harris's previous misdemeanors. There was to be a presentence investigation, and the State agreed to remain silent at sentencing, although Harris was free to argue. After conducting a plea colloquy, the court accepted Harris's plea of guilty to count one.

¶ 5. On September 21, 2001, Judge Carlson sentenced Harris to a 45-year term of imprisonment, composed of 30 years confinement and 15 years extended supervision. On April 30, 2002, Harris filed a postconviction motion to withdraw his guilty plea, which was amended on May 6, 2002. In his amended motion, Harris alleged that shortly after the sentencing hearing Assistant District Attorney Maureen Boyle, at the direction of District Attorney Phillip Koss, informed his trial counsel that the State had failed to disclose that B.M.M. had previously made an allegation that her grandfather had sexually assaulted her on two occasions. A copy of an Elkhorn Police Department case record that was appended to Harris's motion provided that on June 1, 2001, B.M.M. alleged that she had been sexually assaulted by her grandfather on or about February 16-23, 2001. The document also recited that on June 8, 2001, the Walworth County Sheriffs Depart-, ment conducted an audio and videotaped interview with B.M.M., wherein she provided details of the alleged assault. During the interview, B.M.M. alleged that her grandfather, while staying at her house, had awoken her on two occasions, licked his fingers, and touched the front of her vaginal area and "butt-crack" underneath her pajamas. Following the interview, B.M.M.'s mother was reluctant to have her father interviewed and expressed disbelief that he could have done such a thing. She also stated that the following Sunday, June 10, 2001, the family would be moving out of town.

¶ 6. Harris, relying on Brady v. Maryland, 373 U.S. 83, 86 (1963), and State v. Sturgeon, 231 Wis. 2d 487, 497, 605 N.W.2d 589 (Ct. App. 1999), asserted that the State's failure to disclose this evidence violated his constitutional due process right to all exculpatory evidence. The motion was heard before Judge Michael S. Gibbs on July 25, 2002. At the motion hearing, Harris argued that the State was required to disclose this information to him under State ex rel. Lynch v. Circuit Court for Dane County, 82 Wis. 2d 454, 463, 262 N.W.2d 773 (1978), and that its failure to do so required that Harris be allowed to withdraw his guilty plea under Sturgeon. Harris argued this evidence tended to negate his guilt and would have been admissible under State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990).

¶ 7. Specifically, Harris argued that B.M.M.'s allegation concerning her grandfather's assault could be the source of prior sexual knowledge. Harris noted that B.M.M.'s grandfather allegedly assaulted her on February 16 and 23 of 2001 and that the State alleged Harris assaulted B.M.M. on April 11, 2001. Further, Harris argued that given the fact B.M.M. did not report the assaults by her grandfather until June of 2001 and her family did not wish to prosecute her grandfather, it was possible that B.M.M. projected these assaults onto Harris. Moreover, Harris argued that such information would have been necessary to cross-examine the State's expert witnesses. Harris noted that B.M.M. had moved out of state and was now unavailable for him to examine. Finally, counsel for Harris put in an offer of proof that he (Harris) would not have entered into his guilty plea had the State complied with his discovery request and disclosed this information. Harris would testify that he pled guilty because he thought a jury would believe the word of a child and two experts over his statement without any other evidence supporting his case. Harris would also testify that he believed he would receive a much harsher sentence had he gone to trial.

¶ 8. The prosecutor argued that she did not disclose this evidence immediately because the investigation of B.M.M.'s grandfather was still ongoing. Apparently, the investigation was never completed because B.M.M. and her grandfather moved to Texas. Thereafter, the prosecutor stated that she simply forgot about the prior allegation but later found the paperwork after Harris was sentenced. Further, the prosecutor stated she did not believe that the evidence was exculpatory, as it was not admissible under Pulizzano because B.M.M.'s allegations against Harris did not demonstrate that B.M.M. possessed an unusual level of sexual knowledge for a child of her age.

III. PROCEDURAL POSTURE

¶ 9. The circuit court found that the State was required to disclose the disputed evidence because under Brady, "the Defendant has an absolute right to — absolute constitutional right to any exculpatory evidence which may lead to the investigation of finding further exculpatory evidence." The court also stated that it was undisputed that Harris was unaware of his constitutional violation until after he was sentenced. The court determined that Harris would not have pled guilty but for the constitutional violation because the disputed evidence might have been admitted under Pulizzano. Finally, the circuit court found that Harris did not receive a substantial benefit from the plea bargain and that he only pled guilty because he had no evidence to support his version of events. Therefore, the circuit court granted Harris's motion to withdraw his guilty plea. On September 30, 2002, the State filed a notice of appeal.

¶ 10. The court of appeals affirmed. The court of appeals stated that its decision in Sturgeon governed whether a defendant is entitled to withdraw a guilty plea when the State fails to disclose exculpatory evidence prior to a plea and that the United States Supreme Court's decision in Ruiz did not alter its analysis. Harris, 266 Wis. 2d 200, ¶¶ 11, 30. The court of appeals noted that under Brady, "[a] defendant has a constitutional right to all material exculpatory evidence in the hands of the prosecutor." Harris, 266 Wis. 2d 200, ¶ 32 (citing Brady, 373 U.S. at 87). The court of appeals held that "the State violates the Constitution if it withholds the type of information that could form the basis for further investigation by the defense." Id., ¶ 36. The court of appeals reasoned: "Here, the prosecution withheld evidence of a prior sexual assault. Thus ... we hold that this evidence is potentially exculpatory and that it was within the exclusive control of the prosecution. As such, Harris has established a constitutional violation." Id. The court of appeals, relying on the factors stated in Sturgeon, 231 Wis. 2d at 502-04, ruled that Harris would not have pled guilty but for this constitutional violation. Harris, 266 Wis. 2d 200, ¶¶ 38-39, 45. The court of appeals also held that Harris established a violation of Wis. Stat. § 971.23(1)(h) because the State failed to disclose the potentially exculpatory evidence of B.M.M.'s prior sexual assault and rejected the State's argument that the statute simply codified the requirements of Brady. Id., ¶ 46. Therefore, the court of appeals concluded that Harris demonstrated that a withdrawal of his guilty plea was "necessary to avoid a manifest injustice." Id., ¶ 47.

IV DUE PROCESS CLAIM

¶ 11. The present appeal involves a motion to withdraw a guilty plea based on both constitutional and statutory grounds. We first address Harris's constitutional argument. When a defendant seeks to withdraw a guilty plea on constitutional grounds, he must establish all of the following: "(a) that a violation of a constitutional right has occurred; (b) that this violation caused him to plead guilty; and (c) that at the time of his plea he was unaware of the potential constitutional challenges to the case against him because of the violation." Hatcher v. State, 83 Wis. 2d 559, 565, 266 N.W.2d 320 (1978). Having established the foregoing elements, a defendant may withdraw his guilty plea as a matter of right. Id. When applying this test, appellate courts review the underlying historical facts under the clearly erroneous standard but review questions of ultimate constitutional fact independently. Sturgeon, 231 Wis. 2d at 496.

¶ 12. In Brady, the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. The prosecutor has a duty to disclose this evidence although there has been no formal request by the accused. Strickler v. Greene, 527 U.S. 263, 280 (1999). Evidence is favorable to an accused, when, "if disclosed and used effectively, it may make the difference between conviction and acquittal." United States v. Bagley, 473 U.S. 667, 676 (1985). Evidence that is favorable to the accused encompasses both exculpatory and impeachment evidence. Strickler, 527 U.S. at 281-82 ("The evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching") (emphasis added); Bagley, 473 U.S. at 676 ("Impeachment evidence, however, as well as exculpatory evidence, falls within the Brady rule."). The Court has indicated that there is no distinction between the two types of evidence that are "favorable to accused" for Brady purposes. Strickler, 527 U.S. at 280-82; Bagley, 473 U.S. at 676 ("This Court has rejected any such distinction between impeachment evidence and exculpatory evidence.").

¶ 13. In order to establish a Brady violation, the defendant must, in addition to demonstrating that the withheld evidence is favorable to him, prove that the withheld evidence is "material." Giglio v. United States, 405 U.S. 150, 154 (1972) (stating that "[a] finding of materiality of the evidence is required under Brady"). A Brady violation may occur under three circumstances: 1) if the prosecutor fails to disclose that the defendant was convicted on the basis of perjured testimony; 2) if the defendant makes no Brady request and the prosecutor fails to disclose evidence that is favorable to the defendant; or 3) if the defense makes a specific Brady request and the prosecutor fails to disclose the requested material. Bagley, 473 U.S. at 678-81.

¶ 14. While previously the standard for materiality varied depending upon the type of Brady violation, see United States v. Agurs, 427 U.S. 97, 103-07 (1976), the Court has since adopted a uniform standard for materiality governing all three categories of Brady violations: "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682. Under this test, which is the same test for ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984):

[T]he reviewing court may consider directly any adverse effect that the prosecutor's failure to respond might have had on the preparation or presentation of the defendant's case. The reviewing court should assess the possibility that such effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor's incomplete response.

Bagley, 473 U.S. at 683. See also State v. DelReal, 225 Wis. 2d 565, 570-71, 593 N.W.2d 461 (Ct. App. 1999) (recognizing the Bagley formulation of the materiality requirement). As such, "strictly speaking, there is never a real Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler, 527 U.S. at 281.

¶ 15. The United States Supreme Court has summarized the three prerequisites for a Brady violation as follows: "The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler, 527 U.S. at 281-82. "Prejudice," as Strickler provided, encompasses the materiality requirement of Brady so that the defendant is not prejudiced unless " 'the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Strickler, 527 U.S. at 290 (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). Thus, "showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more." Kyles, 514 U.S. at 437. See also Bagley, 473 U.S. at 675 n.7 ("[A] rule that the prosecutor commits error by any failure to disclose evidence favorable to the accused, no matter how insignificant, would impose an impossible burden on the prosecutor and would undermine the interest in the finality of judgments."). As one court explained: "[U]nder the Due Process Clause, prosecutors are required to disclose evidence that is material to either guilt or punishment. A defendant's request for Brady Material, however, does not require a prosecutor to wade through all government files in search of potentially exculpatory evidence." United States v. Lov-it Creamery, Inc., 704 F. Supp. 1532, 1552 (E.D. Wis. 1989) (citations omitted).

¶ 16. Therefore, the court of appeals in the instant case misstated the law when it held that "the State violates the Constitution if it withholds the type of information that could form the basis for further investigation by the defense[,]" and that a constitutional violation occurs when the State refuses to disclose "potentially exculpatory" evidence. Harris, 266 Wis. 2d 200, ¶ 36. This court has previously cautioned that a defendant is not entitled to evidence beyond which the prosecutor is constitutionally or statutorily required to disclose. State v. DeLao, 2002 WI 49, ¶¶ 49-50, 252 Wis. 2d 289, 643 N.W.2d 480 (rejecting discussion of the court of appeals that suggested a defendant was entitled to all evidence he requested that fell outside the scope of statutory and constitutional requirements). As the United States Supreme Court has noted, "the Constitution does not require the prosecutor to share all useful information with the defendant." Ruiz, 536 U.S. at 629. Further, "[t]he mere possibility that an item of undisclosed information might have helped the defense ... does not establish 'materiality' in the constitutional sense." Agurs, 427 U.S. at 109-10. Thus, the Constitution does not require the prosecutor to "allow complete discovery of his files as a matter of routine practice." Id. See also Bagley, 473 U.S. at 675 ("[T]he prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial."); United States v. Coppa, 267 F.3d 132, 143-44 (2d Cir. 2001) (criticizing the district court for ordering the prosecution to disclose all impeachment evidence in its possession to the defendant without regard to its "materiality"); Lynch, 82 Wis. 2d at 463-64 (recognizing that "[t]he constitutional right to a fair trial does not entitle a defendant to inspect the entire file of the prosecutor").

¶ 17. Harris claims that the State violated his constitutional right to Brady evidence by failing to disclose, before he entered his plea, that B.M.M. alleged that her grandfather had assaulted her. Therefore, Harris asserts that he is entitled to withdraw his plea under Sturgeon. We determine, in light of the United States Supreme Court's decision in Ruiz, that due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain. In Ruiz, the Court held that "the Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant." Ruiz, 536 U.S. at 633. However, Harris, following the rationale of the court of appeals in the instant case, see Harris, 266 Wis. 2d 200, ¶¶ 15-30, argues that the Ruiz decision is limited to the context of federal "fast track" plea bargaining. We disagree.

¶ 18. The defendant in Ruiz was offered a "fast track" plea bargain after immigration agents found a significant amount of marijuana on her person. Ruiz, 536 U.S. at 625. The agreement required her to waive her right to impeachment information relating to government witnesses or any affirmative defenses, although the Government was still obligated to produce any information that established her factual innocence. Id. Ruiz rejected the agreement, but eventually pled guilty. Id. at 625-26. At sentencing, Ruiz unsuccessfully argued for the same sentence that the Government would have recommended under the agreement. Id. at 626.

¶ 19. On appeal, the Ninth Circuit ruled that "fast track" plea bargains were unlawful due to the waiver contained therein because the Constitution requires prosecutors to disclose impeachment evidence prior to the entry of a plea agreement and a defendant cannot waive this right. Id. In reversing, the United States Supreme Court stated: "[W]e have found no legal authority embodied either in this Court's past cases or in cases from other circuits that provides significant support for the Ninth Circuit's decision." Id. at 630. Thus, the Court held that there is no constitutional right to impeachment evidence prior to the entry of a plea bargain. Id. at 633.

¶ 20. Harris argues that Ruiz should be limited to its facts because the Court framed the issue very narrowly. Harris relies on the Court's statement that "[t]he constitutional question concerns a federal criminal defendant's waiver of the right to receive from prosecutors exculpatory impeachment material[.]" Id. at 628. We disagree that this single sentence limits Ruiz to its facts because the Court later framed the issue in much broader terms: "We must decide whether the Constitution requires preguilty plea disclosure of impeachment information. We conclude that it does not." Id. at 629. Also, the holding of the Court was not phrased with any limiting language: "[T]he Constitution does not require the Government to disclose material impeachment evidence prior to entering a plea agreement with a criminal defendant." Id. at 633.

¶ 21. Harris also asserts that much of the rationale underlying the Court's decision was premised on the unique context of federal "fast track" plea bargaining. While the Court did discuss such case specific factors as the pre-guilty plea safeguards in Federal Rule of Criminal Procedure 11, the obligation of the Government under the "fast track" agreement to provide the defendant with information establishing her factual innocence, and the need to protect the identity of federal criminal informants, id. at 631-32, these were not the only bases for the Court's decision. A close examination of the Ruiz decision reveals that the Court's holding was based primarily on the nature of impeachment evidence and the policy considerations underlying the Brady rule. For instance, the Court stated that the right to impeachment information is relevant to the fairness of a criminal trial, not whether a plea is voluntary. Id. at 629. The Court also reasoned: Id. at 630. The Court also emphasized that the Constitution does not require a defendant to be aware of all relevant circumstances surrounding his plea, noting that the Constitution "permits a court to accept a guilty plea. . . despite various forms of misapprehension under which a defendant might labor." Id. at 630. The Court then found it difficult to distinguish some of these "various forms of misapprehension" from a defendant's ignorance of impeachment material at the plea bargaining stage. Id. at 630-31.

It is particularly difficult to characterize impeachment information as critical information of which the defendant must always be aware prior to pleading guilty given the random way in which such information may, or may not, help a particular defendant. The degree of help that impeachment information can provide will depend upon the defendant's own independent knowledge of the prosecution's potential case — a matter that the Constitution does not require prosecutors to disclose.

¶ 22. Further, the Court remarked that the "due process considerations, the very considerations that led this Court to find trial-related rights to exculpatory and impeachment information in Brady and Giglio, argue against the existence of the 'right' that the Ninth Circuit found here." Id. at 631. The Court reasoned that any benefit to the defendant of such a right would be clearly minimal because of a defendant's limited knowledge of the government's case. Id. The Court also noted that such a right would undermine the interest of the government in "securing those guilty pleas that are factually justified, desired by defendants, and help to secure the efficient administration of justice." Id.

¶ 23. Therefore, neither the express holding nor the rationale of Ruiz was limited to the context of federal "fast track" plea bargaining. Indeed, several other courts have recognized that Ruiz stands for the proposition that a criminal defendant generally does not have a constitutional right to receive impeachment information prior to entering into a plea bargain. See McCann v. Mangialardi, 337 F.3d 782, 787 (7th Cir. 2003) (noting that while the Court in Ruiz held that "the Due Process Clause does not require the government to disclose impeachment information prior to the

entry of a criminal defendant's guilty plea," due process may require government actors to disclose evidence of a defendant's factual innocence before he enters into a guilty plea); Gruning v. Dipaolo, 311 F.3d 69, 73 (1st Cir. 2002) (recognizing that Ruiz held that the government is not constitutionally required to disclose material impeachment evidence prior to entering into a plea bargain); United States v. Cottage, 307 F.3d 494, 499-500 & n.5 (6th Cir. 2002) (recognizing that the Court in Ruiz held that "a defendant has no constitutional right to the disclosure of impeachment information before entering a plea agreement"); United States v. Dyess, 293 F. Supp. 2d 675, 688 (S.D.W.Va. 2003) (recognizing that the Ruiz decision forecloses any argument that a defendant is entitled to impeachment information under Brady and Giglio before entering a plea); People v. Moore, 804 N.E.2d 595, 598-600 (Ill. App. Ct. 2003) (holding that prosecutor did not violate defendant's due process rights when refusing to negotiate a plea bargain after the defendant requested the identity of a confidential informant because Ruiz established that defendants do not have a right to material impeachment information prior to entering into a plea agreement); In re Brennan, 72 P.3d 182, 186 (Wash. App. 2003) (rejecting petitioner's claim that plea was invalid because prosecutor failed to disclose evidence that could be used to impeach government witness at trial in light of the Ruiz decision that "rejected the Ninth Circuit's conclusion that the constitution requires prosecutors to make certain impeachment information available to defendants before pleading guilty"). We therefore hold, based on the United States Supreme Court decision in Ruiz, that due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain.

V DISCOVERY STATUTE VIOLATION

¶ 24. However, Ruiz is not completely dispositive of the case before us, because unlike the defendant in Ruiz, Harris made a statutory demand for exculpatory evidence under § 971.23(1), which requires the prosecutor to disclose certain materials to the defendant within a reasonable time before trial. As will be discussed further below, a defendant making a statutory discovery demand may be entitled to material exculpatory impeachment evidence before he enters into a plea bargain if the plea bargain is entered into within the time frame when the prosecutor would have been statutorily required to disclose the information.

¶ 25. When a defendant seeks a plea withdrawal on non-constitutional grounds, he may withdraw his guilty plea after demonstrating that a withdrawal is necessary to avoid a "manifest injustice." Hatcher, 83 Wis. 2d at 564. When proceeding on this theory, "the defendant has the burden of proving grounds for withdrawal of his guilty plea by clear and convincing evidence." Id. The fact that the defendant has waived certain defenses by entering into a guilty plea is not dispositive: " 'The question on a motion to withdraw a plea is not whether the accused has waived his rights but whether he should be relieved from such a waiver." Id. at 565 (quoting Brisk v. State, 44 Wis. 2d 584, 588, 172 N.W.2d 199 (1969)). Harris argues he is entitled to withdraw his guilty plea as a result of the State's violation of the discovery statute. Determining whether the court of appeals correctly concluded that the State violated its discovery obligations requires the interpretation and application of the discovery statute to a given set of facts and presents a question of law subject to independent appellate review. DeLao, 252 Wis. 2d 289, ¶ 14.

¶ 26. Harris argues that the State violated § 97l.23(l)(h). This section provides:

(1) What a district attorney must disclose to a defendant. Upon demand, the district attorney shall, within a reasonable time before trial, disclose to the defendant or his or her attorney and permit the defendant or his or her attorney to inspect and copy or photograph all of the following materials and information, if it within the possession, custody or control of the state:
(h) Any exculpatory evidence.

Wis. Stat. § 971.23(l)(h) (emphasis added).

¶ 27. The parties dispute whether the phrase "any exculpatory evidence" merely codifies the constitutional requirements of Brady, or whether the phrase requires the State to disclose a broader set of information to the defendant. However, both parties agree that at a minimum, § 971.23(l)(h) requires that a prosecutor disclose the type of information required under Brady. See Sturgeon, 231 Wis. 2d at 497 n.4. In other words § 971.23(l)(h) requires, at a minimum, that the prosecutor disclose evidence that is favorable to the accused if nondisclosure of the evidence undermines confidence in the outcome of the judicial proceeding.

¶ 28. Harris asserts that the undisclosed evidence was "favorable to the accused" because it was directly relevant to the credibility of B.M.M., as she could have projected her grandfather's assault onto him. Harris notes that the alleged assaults by her grandfather occurred shortly before Harris is alleged to have assaulted B.M.M., and B.M.M. did not report the assaults by her grandfather until after she had reported being assaulted by Harris. Harris argues this evidence would have created an inference that he was not guilty. Also, Harris claims that the undisclosed allegation was relevant to the credibility and reliability of any expert witness the State would have called because it established a previous source for B.M.M.'s sexual knowledge and reactive behaviors. According to Harris, because the evidence related to the credibility of the State's most influential witnesses, it was material, and therefore subject to disclosure. The State primarily argues that the undisclosed information is not material because it would not have been admissible, as it does not meet the Pulizzano exception to the rape shield law.

¶ 29. The United States Supreme Court has recognized that "[w]hen the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within [the Brady] rule." Giglio, 405 U.S. at 154 (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). The Court has stated that "[o]ur cases make clear that Brady's disclosure requirements extend to materials that, whatever their other characteristics, may be used to impeach a witness." Strickler, 527 U.S. at 282 n.21.

¶ 30. We agree with Harris that here, the undisclosed information is favorable to the accused because it casts doubt on the credibility of the State's primary witnesses and may have supported an inference that B.M.M. was projecting her grandfather's assaults onto Harris. The United States Supreme Court has noted that "there are situations in which evidence is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed . . . ." Agurs, 427 U.S. at 110. Here, the undisclosed information is not directly exculpatory in the sense that DNA evidence might be because the fact that B.M.M. had alleged being previously sexually assaulted by her grandfather does not, in and of itself, tend to negate Harris's guilt regarding the separate assault that B.M.M. alleged he committed. However, the evidence here constitutes impeachment information that could be used to challenge the credibility of witnesses whose credibility would have been determinative of Harris's guilt. Giglio, 405 U.S. at 154. Thus, the undisclosed information constitutes exculpatory impeachment evidence because it is relevant to B.M.M.'s credibility and that of any expert the State may have called to provide evidence under State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988), as it may have provided an alternate source for B.M.M.'s sexual knowledge and may have created the inference that B.M.M. projected the assaults perpetrated by her grandfather onto Harris. Because this evidence could have undermined the credibility of the State's most influential witnesses, this is one of those situations in which fundamental fairness dictates that the evidence should have been disclosed.

¶ 31. We also disagree with the State's argument that this evidence is not material because we determine that the State's nondisclosure of this evidence sufficiently undermines our confidence in the outcome of Harris's criminal proceeding. While the State argues at length that the undisclosed evidence is not material because it does not meet the Pulizzano test, we find this argument to be unpersuasive because the State never afforded Harris the opportunity to bring a Pulizzano motion in the first place. We need not determine whether the five factor Pulizzano test would have been met in this case because even if the test would have been met, the circuit court would still have been obligated to balance Harris's right to present the evidence against the interest of the State in excluding it. See State v. Dunlap, 2002 WI 19, ¶ 20, 250 Wis. 2d 466, 640 N.W.2d 112; Pulizzano, 155 Wis. 2d at 653-54. By failing to disclose B.M.M.'s prior allegation, the State denied Harris the opportunity to further investigate B.M.M.'s allegations and bring a Pulizzano motion. As the resolution of any Pulizzano motion would have required the circuit court to balance the competing interests involved, the prosecutor here should have disclosed the evidence and let the circuit court determine its admissibility. As the United States Supreme Court has stated, "[bjecause we are dealing with an inevitably imprecise standard, and because the significance of an item of evidence can seldom be predicted accurately until the entire record is complete, the prudent prosecutor will resolve doubtful questions in favor of disclosure." Agurs, 427 U.S. at 108. Further, Wisconsin courts have recognized that "[ijmpeachment evidence casting doubt on a witness's credibility is material and subject to disclosure." DelReal, 225 Wis. 2d at 571. See also Tucker v. State, 84 Wis. 2d 630, 641, 267 N.W.2d 630 (1978); Loveday v. State, 74 Wis. 2d 503, 516, 247 N.W.2d 116 (1976).

¶ 32. The State's argument is also contrary to the rationale utilized by the court of appeals in DelReal. In DelReal, the court of appeals determined that the State failed to disclose Brady evidence when the State failed to inform the defendant that it had performed gunshot residue swabbing on the defendant's hands prior to trial. DelReal, 225 Wis. 2d at 571. A postconviction investigation revealed that while the State had performed the swabbing, it had not tested the results. Id. at 569. At the behest of the defendant, the tests were performed and the results came back negative. Id. In addressing whether this evidence was relevant and material, the court of appeals reasoned:

[T]he State failed to turn over evidence of an exculpatory nature; i.e., the State failed to disclose that swabbing had in fact been performed, which would have provided DelReal the opportunity to have the swabs tested leading to a negative test result. This was relevant, exculpatory evidence because the negative test result would have some weight and its tendency could have supplied a favorable inference of DelReal's innocence to the jury.

Id. at 571 (emphasis added). The court further noted that this evidence was relevant for impeachment purposes because it could have been used to attack the credibility of a police detective who testified that swabbing had not been performed. Id. at 573, 576. The court held that "[i]n the interest of securing a fair trial, DelReal was entitled to challenge the reliability of the police investigation and to challenge the credibility of Gomez." Id. at 575. Under the rationale set forth by the State in the present case, the defendant in DelReal would not have been entitled to the evidence that gunshot residue swabbing had been performed because the results had not been tested prior to trial.

¶ 33. In the interests of a fair proceeding, Harris was entitled to the opportunity to bring a Pulizzano motion to challenge the reliability of the State's expert witness and challenge the credibility of the victim. As the State failed to disclose B.M.M.'s allegation regarding her grandfather, Harris was never given the opportunity to make use of this exculpatory impeachment evidence. By failing to disclose this evidence, the State denied him a fair judicial proceeding.

¶ 34. We recognize that in the constitutional context, the Brady requirement of materiality is dependent upon whether the suppressed evidence undermines confidence in the outcome of the trial and that no trial took place here. However, as the Supreme Court stated when discussing how a reviewing court should evaluate a prosecutor's pretrial decision to not disclose evidence:

The reviewing court should assess the possibility that such [prejudicial] effect might have occurred in light of the totality of the circumstances and with an awareness of the difficulty of reconstructing in a post-trial proceeding the course that the defense and the trial would have taken had the defense not been misled by the prosecutor's incomplete response.

Bagley, 473 U.S. át 683. The State's argument requires us to reconstruct how a hypothetical trial would have proceeded and speculate as to how the jury would have viewed the evidence. We decline to do so. The circuit court accepted Harris's offer of proof that he pled guilty only because of the relative strength of the State's case and would not have pled guilty had this evidence been disclosed. As Harris demonstrated that he would not have pled guilty but for the nondisclosure of this favorable evidence, we are satisfied that the nondisclosure of the evidence sufficiently undermines our confidence in the outcome of the proceeding. As such, the State was under a statutory obligation to disclose B.M.M.'s allegation after Harris made a statutory demand for "any exculpatory evidence."

¶ 35. The next issue we must address is one of timing. The statute requires the State to disclose certain materials demanded by the defendant "within a reasonable time before trial." Wis. Stat. § 971.23(1). The statute itself does not define what is a "reasonable time before trial," and there are no cases that establish a per se rule for what is "reasonable" under the statute. However, we note that immediate disclosure is not required under Brady. See Coppa, 267 F.3d at 143-44 (criticizing the district court for ordering prosecution to disclose all impeachment evidence immediately upon demand). What Brady does require is that the prosecution must disclose exculpatory evidence to the defendant "in time for its effective use." Id. at 144. See also United States v. O'Hara, 301 F.3d 563, 569 (7th Cir. 2002) (finding no Brady violation where the defendant "had sufficient time to make use of the material disclosed"); United States v. Grintjes, 237 F.3d 876, 880 (7th Cir. 2001) ("Brady applies only where the allegedly exculpatory evidence was not disclosed in time for the defendant to make use of it.").

¶ 36. In the constitutional context, this "timing" requirement dovetails with the Brady's "materiality" requirement. Coppa, 267 F.3d at 142 (noting that "the prosecutor must disclose 'material'... exculpatory and impeachment information no later than the point at which a reasonable probability will exist that the outcome would have been different if an earlier disclosure had been made"). Therefore, "[.Brady] demands only that the disclosure not come ' "so late as to prevent the defendant from receiving a fair trial."'" Grintjes, 237 F.3d at 880 (quoting United States v. Adams, 834 F.2d 632, 634 (7th Cir. 1987) (quoting United States v. McPartlin, 595 F.2d 1321, 1346 (7th Cir. 1979))).

¶ 37. However, Brady's timing requirements cannot be completely incorporated into § 971.23(1) because the statute requires that evidence be disclosed "within a reasonable time before trial." Wis. Stat. § 971.23(1) (emphasis added). Brady, on the other hand, "does not require pretrial disclosure." Grintjes, 237 F.3d at 880 (citing United States v. Sweeney, 688 F.2d 1131, 1141 (7th Cir. 1982)). See also United States v. Reyes, 270 F.3d 1158, 1166-67 (7th Cir. 2001)(same). Thus, in regard to the timing of disclosure, § 971.23 is broader than the constitutional requirements of Brady. While we cannot apply the Brady standard for determining when the timing requirement is satisfied, in light of statutory language that clearly requires pretrial disclosures, we do find Brady's initial formulation of the timing requirement to be useful. We hold that in order for evidence to be disclosed "within a reasonable time before trial" for purposes of § 971.23, it must be disclosed within a sufficient time for its effective use. Were it otherwise, the State could withhold all Brady evidence until the day of trial in the hope that the defendant would plead guilty under the false assumption that no such evidence existed.

¶ 38. The jury trial in Harris's case was set for August 6-8, 2001. He made his discovery demand on May 30, 2001, and pled guilty pursuant to the plea agreement on July 25, 2001. Thus, at the time Harris entered into his plea agreement, there were approximately two weeks until trial. As discussed previously, had B.M.M.'s allegations against her grandfather been disclosed, Harris would have brought a Pulizzano motion in order to admit the evidence. Also, because this evidence would have been used not only to challenge B.M.M.'s credibility, but also to challenge the credibility and reliability of the State's Jensen experts, Harris would have been required to secure experts of his own. Given the nature of Pulizzano evidence and the fact that the State was planning to call at least one expert witness to provide Jensen-type evidence, the State should have disclosed the suppressed evidence by at least this point in the proceedings in order for Harris to be able to effectively use it. We are satisfied that by the time Harris pled guilty, the State should have disclosed B.M.M.'s statement in order to meet the statutory requirement that such evidence be disclosed within a reasonable time before trial. Thus, although we concluded under Ruiz that the specific type of evidence here was not required to be disclosed prior to Harris's plea bargain as a constitutional matter, we nonetheless conclude that the State was under a statutory obligation to disclose this evidence because § 971.23 requires Brady evidence to be disclosed "within a reasonable time before trial."

¶ 39. Finally, we address whether the State's violation of § 971.23(l)(h) entitles Harris to withdraw his plea. In Hatcher, this court delineated four circumstances in which a criminal defendant is entitled to withdraw his guilty plea in order to avoid a manifest injustice: 1) if he was denied effective assistance of counsel; 2) if the plea was not entered or ratified by the defendant or his agent; 3) if the plea was involuntary because it was entered without knowledge of the charge or potential sentence; or 4) if the State breached the plea agreement. Hatcher, 83 Wis. 2d at 564. However, we noted that this list was not exhaustive and stated that a defendant may be able to withdraw a plea on the grounds of manifest injustice in similar circumstances. Id. We believe that the circumstances here are sufficiently similar to those delineated in Hatcher. The common thread among the situations listed in Hatcher is that the defendant was deprived of a right guaranteed by the constitution, statute, or rule, and that deprivation induced the defendant to plead guilty. Here, the State violated the discovery statute by withholding material exculpatory impeachment evidence that, if admitted, would have raised serious questions about the credibility of the victim and the reliability of the State's expert witnesses. Aside from Harris's own version of events, this was the only existing material evidence that was "favorable to the accused." The circuit court accepted Harris's postconviction offer of proof that he would not have pled guilty had this evidence been available to him. This court has previously determined that a prosecutor's violation of discovery statute, if prejudicial to the defendant, entitles the defendant to a new trial. DeLao, 252 Wis. 2d 289, ¶ 59. Here, the State's violation of the discovery statute prevented Harris from ever having a trial. Harris has demonstrated the State's discovery statute violation resulted in " 'a serious flaw in the fundamental integrity of the plea.'" State v. Thomas, 2000 WI13, ¶ 16, 232 Wis. 2d 714, 605 N.W.2d 836 (quoting State v. Nawrocke, 193 Wis. 2d 373, 379, 534 N.W.2d 624 (Ct. App. 1995)). Under these circumstances, we believe it necessary to allow Harris to withdraw his guilty plea in order to prevent a manifest injustice.

VI. CONCLUSION

¶ 40. To summarize, we hold that the State did not violate Harris's right to due process because, pursuant to the United States Supreme Court's decision in Ruiz, due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain. However, we determine that B.M.M.'s allegation against her grandfather is the type of information the State was required to disclose pursuant to § 971.23(l)(h) because it constitutes evidence favorable to the accused whose nondisclosure undermines our confidence in the judicial proceeding. This information is favorable to the accused because it constitutes impeachment evidence that casts doubt on the credibility of the State's primary witnesses. The nondisclosure of this evidence undermines our confidence in the outcome of the judicial proceeding because Harris would not have pled guilty but for the nondisclosure of this evidence. We further hold that in order to comply with the mandate in § 971.23(1) that such information must be turned over within a reasonable time before trial, the State was obligated to disclose this evidence at a point when Harris would have had sufficient time to make effective use of the information. As Harris entered his plea bargain within two weeks prior to the date his trial was scheduled to commence, the State should have disclosed the suppressed evidence by at least this point in the proceedings in order for Harris to be able to effectively use it. Given that 1) the evidence of B.M.M.'s allegation was the type of evidence required to be disclosed under § 971.23(l)(h); 2) the State did not disclose this evidence within a reasonable time before trial; and 3) Harris would not have pled guilty but for this nondisclosure, Harris has demonstrated that a withdrawal of his plea is necessary to avoid a manifest injustice.

By the Court. — The decision of the court of appeals is affirmed.

¶ 41. DIANE S. SYKES, J., did not participate.

JON E WILCOX, J.

¶ 42. {concurring). I write separately because I believe that the decision in United States v. Ruiz, 536 U.S. 622 (2002), properly interpreted, is not limited to impeachment evidence, but rather extends to both material impeachment evidence and material exculpatory evidence. While the majority of the discussion in Ruiz focused on impeachment evidence, the waiver contained in the plea agreement at issue in Ruiz contained not only a waiver of the right to impeachment evidence, but also a waiver of the right to evidence supporting any affirmative defense. Ruiz, 536 U.S. at 625. The majority in Ruiz specifically rejected the notion that due process requires information regarding an affirmative defense to be disclosed prior to plea bargaining. Id. at 633.

¶ 43. Exculpatory evidence includes evidence that tends to support an affirmative defense. See United States v. Agurs, 427 U.S. 97, 98-99 (1976) (Although the court ultimately concluded that the evidence in question, supporting a theory of self-defense, was not material under its now-outdated definition of materiality, the Court never questioned the exculpatory nature of the evidence in question). An affirmative defense is defined as "[a] defendant's assertion raising new facts and arguments that, if true, will defeat the. .. prosecutor's claim, even if all allegations in the complaint are true." Black's Law Dictionary 430 (7th ed. 1999). Thus, by definition, evidence supporting an affirmative defense is exculpatory because it tends "to establish a criminal defendant's innocence." Id. at 577.

¶ 44. In addition, the United States Supreme Court has repeatedly held that exculpatory evidence and impeachment evidence are to be treated the same for purposes of Brady v. Maryland, 373 U.S. 83 (1963). Strickler v. Greene, 527 U.S. 263, 280-82 (1999). In United States v. Bagley, 473 U.S. 667, 676 (1985), the Court stated that there is no substantive difference between impeachment evidence and exculpatory evidence for Brady purposes: "This Court has rejected any such distinction between impeachment evidence and exculpatory evidence." Thus, it logically follows that if due process does not require impeachment evidence to be disclosed prior to a plea agreement, then due process does not require exculpatory evidence to be disclosed prior to a plea agreement.

¶ 45. The conclusion that due process does not require the disclosure of exculpatory evidence prior to a plea bargain is also consistent with the very underpinnings of Brady. The Court has previously recognized that because the purpose of the Brady rule is to ensure a fair trial, there is no violation unless the government's nondisclosure of the evidence resulted in an unfair trial. Agurs, 427 U.S. at 108 ("[T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant's right to a fair trial."); Bagley, 473 U.S. at 678 ("[Suppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial."). Indeed, in his concurrence in Ruiz, Justice Thomas aptly remarked: "The principle supporting Brady was 'avoidance of an unfair trial to the accused.' That concern is not implicated at the plea stage regardless." Ruiz, 536 U.S. at 634 (Thomas, J., concurring)(quoting Brady, 373 U.S. at 87). See also Matthew v. Johnson, 201 F.3d 353, 361-62 (5th Cir. 2000) ("Because a Brady violation is defined in terms of the potential effects of undisclosed information on a judge's or jury's assessment of guilt, it follows that the failure of a prosecutor to disclose exculpatory information to an individual waiving his right to trial is not a constitutional violation.).

¶ 46. Because I would hold, pursuant to Ruiz, that due process does not require the disclosure of material impeachment information or material exculpatory information prior to plea bargaining, I respectfully concur.

       "This court has repeatedly stated that the due process clauses of the state and federal constitutions are essentially equivalent and are subject to identical interpretation." State v. Hezzie R., 219 Wis. 2d 848, 891, 580 N.W.2d 660 (1998)(citing Reginald D. v. State, 193 Wis. 2d 299, 307, 533 N.W.2d 181 (1995)).

       All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.

       In his discovery demand, Harris also requested the following: 1) "All exculpatory evidence ... that would tend to negate the Defendant's guilt;" 2) "All exculpatory evidence... that would tend to affect the weight and credibility of evidence used against the Defendant;" and 3) "All exculpatory evidence... that would extenuate, mitigate, or reduce the degree of the offense charged or the Defendant's punishment for the offense."

       Expert testimony "about the consistency of a sexual assault complainant's behavior with victims of the same type of crime" is commonly referred to as "Jensen evidence," in reference to our decision in State v. Jensen, 147 Wis. 2d 240, 432 N.W.2d 913 (1988). See State v. Dunlap, 2002 WI 19, ¶ 36, 250 Wis. 2d 466, 640 N.W.2d 112.

       In State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), this court created a judicial exception to Wisconsin's rape shield law, Wis. Stat. § 972.11(2), that allows a defendant to present evidence of a child's past sexual behavior if the defendant demonstrates that the evidence meets a five-part test and if the court determines that the State's interest in excluding the evidence is outweighed by the defendant's right to present it. See Dunlap, 250 Wis. 2d 466, ¶ 20.

       While generally this court does not address constitutional issues if it can resolve the case on statutory grounds, the court of appeals' constitutional analysis contains several misstatements of the law. This court has not decided whether a portion of a court of appeals decision that is not discussed when the opinion is overruled on other grounds is still precedential. See State v. Gary M.B., 2004 WI 33, ¶ 44 n.l, 270 Wis. 2d 62, 676 N.W.2d 475 (Abrahamson, C.J., dissenting). Therefore, we address the constitutional issue presented in this case.

       We interpret the "cause" element of the test set forth in Hatcher v. State, 83 Wis. 2d 559, 565, 266 N.W.2d 320 (1978), to mean that a defendant must demonstrate that he would not have pled guilty but for the constitutional violation.

       As the United States Supreme Court has explained, the rule in Brady v. Maryland, 373 U.S. 83 (1963), is based on the right to due process at trial; "[i]ts purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur." United States v. Bagley, 473 U.S. 667, 675 (1985).

       "Exculpatory evidence" is defined as "[e]vidence tending to establish a criminal defendant's innocence." Black's Law Dictionary 577 (7th ed. 1999).

       "Impeachment evidence" is defined as "[e]vidence used to undermine a witness's credibility." Black's Law Dictionary 578 (7th ed. 1999).

       The Court first recognized that impeachment evidence fell within the Brady rule in Giglio v. United States, 405 U.S. 150, 154 (1972). The Court held: "When the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule." Id. (quoting Napue v. Illinois, 360 U.S. 264, 269 (1959)). The Court has since referred to this type of evidence as "exculpatory impeachment" evidence. United States v. Ruiz, 536 U.S. 622, 628 (2002).
      In the present case, the undisclosed evidence is not directly exculpatory because the fact that B.M.M. had alleged being previously sexually assaulted by her grandfather does not, in and of itself, tend to negate Harris's guilt regarding the separate assault that B.M.M. alleged he committed. However, as discussed infra, this evidence could be used to challenge the credibility of the State's primary witnesses (B.M.M. and any Jensen experts), witnesses whose reliability would have been determinative of Harris's guilt. Therefore, we believe that this evidence is material exculpatory impeachment evidence. Therefore, throughout the remainder of the opinion, we shall use the phrase "material exculpatory impeachment evidence" to refer to the particular type of evidence at issue in this case.

       Thus, Brady's disclosure requirements apply only to evidence that is favorable to the accused — exculpatory evidence and impeachment evidence — that is also material. The Court's decisions in Strickler v. Greene, 527 U.S. 263, 280 (1999), and Bagley, 473 U.S. at 676, demonstrate that Brady's disclosure requirements apply to material exculpatory evidence and material impeachment evidence. When referring to the type of evidence that is required to be disclosed under Brady generally, we use the phrase "Brady evidence."

       The United States Supreme Court further elaborated on the requirement of "materiality" in Kyles v. Whitley, 514 U.S. 419 (1995). First, the Court explained: "[A] showing of materiality does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal." Id. at 434. Second, the Court remarked that the Brady requirement of materiality is not a sufficiency of the evidence test and thus it is not necessary to show that there would not have been enough inculpatory evidence to convict once the suppressed evidence is discounted. Id. at 434-35. Third, the Court stated that once there has been a showing of materiality sufficient to establish a constitutional violation, that error cannot be harmless. Id. at 436. Fourth, the Court noted that materiality must be assessed by considering the effect of all of the excluded evidence collectively. Id. at 436-37.

       When defendants enter into a "fast track" plea bargain in federal court, they waive their right to indictment, trial, and appeal in exchange for a recommendation of a two-level downward departure from the applicable sentencing guidelines. Ruiz, 536 U.S. at 625.

       The State asks us to go one step further and overrule the court of appeals' decision in State v. Sturgeon, 231 Wis. 2d 487, 605 N.W.2d 589 (Ct. App. 1999). We decline to do so. Today's decision is limited to the scope of material exculpatory impeachment evidence. We do not determine whether due process requires the disclosure of purely exculpatory information prior to a plea bargain.

       Harris also contended at oral argument that the State violated Wis. Stat. § 971.23(l)(e). That section provides that a prosecutor must disclose "[a]ny relevant written or recorded statements of a witness named on a list under par. (d).. . ." Wis. Stat. § 971.23(l)(e). Wisconsin Stat. § 971.23(l)(d) provides that the prosecutor must disclose "[a] list of all witnesses and their addresses whom the district attorney intends to call at trial." We agree that the State may have been obligated under § 971.23(l)(e) to disclose B.M.M.'s recorded allegation that her grandfather assaulted her. However, because this issue was not discussed in the parties' briefs and the record does not contain a copy of any witness list provided by the State, we decline to resolve this case on the basis of § 971.23(l)(e).

        But see State ex rel. Lynch v. Circuit Court for Dane County, 82 Wis. 2d 454, 463, 262 N.W.2d 773 (1978)("The State must therefore disclose such material as soon as the state recognizes its exculpatory character.").

       The Seventh Circuit has noted, despite the holding in United States v. Ruiz, 536 U.S. 622 (2002), that "it is highly likely that the Supreme Court would find a violation of the Due Process Clause if prosecutors or other relevant government actors have knowledge of a criminal defendant's factual innocence but fail to disclose such information to a defendant before he enters into a guilty plea." McCann v. Mangialardi, 337 F.3d 782, 788 (7th Cir. 2003). However, this statement does not diminish the significance of Ruiz's holding with respect to exculpatory evidence relating to affirmative defenses. While evidence that actually establishes a defendant's factual innocence will necessarily be exculpatory, the converse is not true; not all exculpatory evidence actually establishes the factual innocence of the defendant. See Black's Law Dictionary 577 (7th ed. 1999) (defining exculpatory evidence as "[e]vidence tending to establish a criminal defendant's innocence") (emphasis added). I further note that the case at bar does not implicate this statement from McCann because here the State did not withhold evidence that actually established Harris's innocence.


source: Caselaw Access Project

author: ANN WALSH BRADLEY, J.

license: Public Domain

text:
    Julie L. Weber and Joshua Weber, Plaintiffs-Respondents-Petitioners, WEA Insurance Corporation, Carefirst of Maryland, Inc., d/b/a Carefirst Blue Cross Blue Shield, and Wisconsin Physicians Insurance Corporation, Involuntary-Plaintiffs, v. Angelene White and Farmers Insurance Exchange, Defendants-Appellants.
    Supreme Court

      No. 03-0471.

      Oral argument April 7, 2004.

    Decided June 8, 2004.

    2004 WI 63
    (Also reported in 681 N.W.2d 137.)

      For the plaintiffs-respondents-petitioners there were briefs by Thomas W. Kyle, Jonathan P. Groth and Pitman, Kyle & Sicula, S.C., Milwaukee, and oral argument by Jonathan P. Groth.

    For the defendants-appellants there was a brief by Michael R. Vescio and O'Hagan, Smith & Amundsen, LLC, Greenfield, and oral argument by Michael R. Vescio.

   ANN WALSH BRADLEY, J.

¶ 1. The petitioners, Julie and Joshua Weber (hereinafter "the Webers"), seek review of a published decision of the court of appeals reversing a portion of the jury verdict awarding them $5,000 for future health care expenses. The Webers assert that the court of appeals erred when it determined that the award for future health care expenses was based on fatally contradictory testimony and thus not supported by any credible evidence.

¶ 2. The respondents, Angelene White and Farmers Insurance Exchange (hereinafter "White"), contend that the court of appeals erred when it concluded that the circuit court did not erroneously exercise its discretion in denying their motion for relief pending appeal. Specifically, White had sought to pay the clerk of courts a portion of the judgment at issue to avoid the accumulation of further statutory interest.

¶ 3. We agree with the court of appeals that the circuit court did not erroneously exercise its discretion in denying White's motion to pay the clerk of courts. However, we disagree with its conclusion that the verdict for future health care expenses was based on fatally contradictory testimony and thus not supported by any credible evidence. Because we determine that a reasonable jury could have awarded future health care expenses, we reverse the court of appeals and remand for further proceedings.

H-¶

¶ 4. This case arises out of an automobile accident. Julie Weber suffered injuries after a car driven by Angelene White rear-ended her vehicle at the intersection of West Brown Deer Road and North 76th Street, in Milwaukee. Following the accident, Julie Weber was diagnosed with a whiplash injury. When she failed to make a full recovery after physical therapy, she was referred to Dr. George J. Hanacik Jr., for chiropractic treatment.

¶ 5. The Webers commenced this action, alleging that White acted negligently when she hit Julie Weber's car and that, as a result, Julie Weber sustained permanent injuries. Pursuant to Wis. Stat. § 807.01 (1999-2000), the Webers offered to settle their claim for $35,000. White countered with an offer of judgment for $20,000, which the Webers rejected. Prior to trial, the parties stipulated that White was "100% negligent in causing the accident."

¶ 6. Both the doctor who originally treated Mrs. Weber and Dr. Hanacik testified that she was permanently injured and that she would experience future pain and suffering. Dr. Hanacik, however, was the Webers' sole witness concerning future health care expenses. He stated that Julie Weber had suffered a permanent shoulder impingement as a result of the accident and that he treated her on an as-needed basis, depending upon her level of activity. On direct examination he explained:

One can not estimate exactly what is going to happen, but in seeing what we've seen so far, she has times that she is very, very good where I might not see her for a month, month-and-a-half, and then all of a sudden, there will be an event that may cause her a lot of pain.

¶ 7. Dr. Hanacik further observed that Julie Weber would probably need on an average of 20-25 chiropractic visits per year for future care:

Future care for her I would probably say would probably be around 20 to 25 visits a year, probably, on an average. I mean, if it's better, it's better. If it's worse, it's worse, but when I do it on an as-needed basis, I mean, she comes in when she's got a problem.

¶ 8. Finally, Dr. Hanacik noted that a typical visit would cost $60. He concluded his testimony by stating that all of his opinions were to a "reasonable degree of chiropractic certainty."

¶ 9. On cross-examination, Dr. Hanacik was asked if it was his opinion to a reasonable degree of chiropractic certainty that Julie Weber would need 20 to 25 visits a year for at least the next 35 years. He answered that 20 to 25 visits a year was an example and that she could possibly need only three visits in one year. He stated:

That is an example of what we've seen this year. That does not mean - I mean, next year I may see her only three times. It depends on what is happening with her.

¶ 10. Dr. Hanacik was asked, "[s]o you are not saying to a reasonable degree of chiropractic certainty she is going to be in 20 to 25 times a year for the next 35 years?" He responded, "No, I'm not." Dr. Hanacik further acknowledged that he could not see into the future and give a "ballpark figure" as to how many times Julie Weber would need treatment. However, Dr. Ha-nacik did reiterate that he would provide care to her on an as-needed basis for the injury.

¶ 11. The jury awarded Julie Weber $5,000 for future health care expenses. It also awarded her $18,278.50 for past health care expenses, $5,000 for past pain, suffering and disability, and $8,000 for future pain, suffering and disability. The total verdict was $36,278.50.

¶ 12. White moved to vacate the jury's award of future health care expenses. Citing Ianni v. Grain Dealers Mutual Insurance Co., 42 Wis. 2d 354, 166 N.W.2d 148 (1969), White argued that the jury could not rely on Dr. Hanacik to determine future health care expenses because his testimony on cross-examination completely contradicted his testimony on direct examination.

¶ 13. The circuit court denied the motion, explaining that the totality of Dr. Hanacik's testimony provided sufficient evidence to support the jury's award. It then entered judgment awarding the Webers double costs and interest pursuant to Wis. Stat. § 807.01.

¶ 14. While the matter was being appealed, White filed a motion asking the circuit court for permission to pay the clerk of courts a portion of the judgment to avoid the accumulation of further statutory interest. The circuit court denied the requested relief.

¶ 15. The court of appeals affirmed the circuit court's decision denying White's motion to pay the clerk of courts. Weber v. White, No. 03-0471, unpublished order (Wis. Ct. App. Sept. 23, 2003). However, it reversed the portion of the jury verdict awarding $5,000 for future health care expenses, as well as the portion of the judgment awarding double costs and interest under Wis. Stat. § 807.01. Weber v. White, 2003 WI App 240, ¶ 16, 267 Wis. 2d 862, 672 N.W.2d 151. Relying on Ianni, 42 Wis. 2d 354, the court concluded that Dr. Hanacik's testimony was fatally contradictory and that the jury's verdict was based on nothing but mere speculation. Id., ¶ 15.

HH

¶ 16. Our review of a jury's award is a limited one. See, e.g., Morden Continental AG, 2000 WI 51, ¶ 38, 235 Wis. 2d 325, 611 N.W.2d 659. We will sustain a verdict if there is any credible evidence to support it. Id. (citing Meurer v. ITT Gen. Controls, 90 Wis. 2d 438, 450, 280 N.W.2d 156 (1979); Giese v. Montgomery Ward, 111 Wis. 2d 392, 401, 331 N.W.2d 585 (1983)).

¶ 17. In the present case, the scope of our review is further circumscribed because the circuit court approved the jury's award. See Kuklinski v. Rodriguez, 203 Wis. 2d 324, 331, 552 N.W.2d 869, 872 (Ct. App. 1996). Thus, we will not upset the verdict unless "there is such a complete failure of proof that the verdict must be based on speculation." Coryell v. Conn, 88 Wis. 2d 310, 315, 276 N.W.2d 723 (1979).

¶ 18. In reviewing the denial of a motion for relief pending appeal, we employ an erroneous exercise of discretion standard of review. See Management Computer Services, Inc. v. Hawkins, Ash Baptie & Co., 224 Wis. 2d 312, 330-31, 592 N.W.2d 279 (Ct. App. 1998). Accordingly, we will uphold the circuit court's exercise of discretion, so long as it examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, arrived at a conclusion that a reasonable judge could reach. Id. at 330.

pH HH I — I

¶ 19. In this case, we consider the application of the Ianni "no case" rule. Given the testimony of Dr. Hanacik, we must determine whether a reasonable jury could award future health care expenses.

¶ 20. We begin our discussion by examining whether the jury's verdict on future health care expenses was supported by any credible evidence. In order to sustain such an award, two criteria must be met: (1) there must be expert testimony of permanent injuries, requiring future medical treatment and the incurring of future medical expenses; and (2) an expert must establish the cost of such medical expenses. Bleyer v. Gross, 19 Wis. 2d 305, 311, 120 N.W.2d 156 (1963).

¶ 21. Both parties agree that Julie Weber's injury is permanent and that the cost per chiropractic visit is $60. However, the parties disagree as to whether a reasonable jury could determine her future health care expenses from Dr. Hanacik's testimony.

¶ 22. White contends, and the court of appeals agreed, that Dr. Hanacik made fatally contradictory statements on cross-examination concerning Julie Weber's future health care expenses. Specifically, they allege that Dr. Hanacik contradicted himself in two ways: (1) by retracting his statement that Julie Weber would need 20 to 25 visits per year; and (2) by refusing to give a "ballpark figure" on the amount of treatment she would need at specific times in the future. Because Dr. Hanacik was the only expert to testify to future health care expenses, White asks this court to apply the "no case" rule from lanni, 42 Wis. 2d at 360.

¶ 23. In lanni, a mother and daughter, who were passengers in an automobile that was involved in a head-on collision, brought a personal injury action against the insurer of the automobile in which they were riding. Id. at 358. Six days after the accident, Mrs. lanni signed a statement that she did not see any part of the accident because she was asleep. Id. at 359. Approximately nine months later, she signed another statement, indicating that the other vehicle had crossed the centerline and collided with her family's car. Id. Finally, at trial, Mrs. lanni testified that her family's car was traveling at 70 m.p.h. down the center of the road. Id.

¶ 24. Due to the inconsistencies of her account, this court was asked to find the witness stand testimony of Mrs. lanni incredible as a matter of law. Id. at 360. It observed that the general rule would seem to support preclusion of such testimony. Quoting Corpus Juris Secundum, it explained:

Where a party relies on the testimony of a single witness to prove a given issue, and the testimony of such witness is contradictory and conflicting with no explanation of the contradiction, and no other fact or circumstance in the case tends to show which version of the evidence is true, no case is made.

Id. (quoting 32 C.J.S., Evidence, § 1043 at 832).

¶ 25. However, the court went on to distinguish contradictions in the course of the same in-court testimony from contradictions between in-court and out-of-court statements. It observed:

Where the conflict and contradictions are within the body of the testimony given, the "no case" conclusion follows. Where the conflict or contradiction arises by reason of an earlier statement given by the witness, it is for the jury to determine the question of the weight and credence to be given the witness-stand testimony and prior extrajudicial statement.

Id. Thus, the Ianni court ultimately chose not to apply the very "no case" rule it articulated.

¶ 26. Although the Ianni "no case" rule has existed for 35 years in Wisconsin, no appellate court has ever applied it. The court of appeals recognized this fact in Liles v. Employers Mut. Insurance, 126 Wis. 2d 492, 498, 377 N.W.2d 214 (Ct. App. 1985), noting, "we hesitate to [apply the "no case" rule] except in the most extreme cases." Given the severe consequences of the rule, we too believe that it should be reserved for the most extreme cases.

¶ 27. We refuse to apply the Ianni "no case" rule to the case at hand because it fails to meet the essence of the test: contradictory testimony. We do not view Dr. Hanacik's testimony as fatally contradictory when viewed as a whole. Rather, we conclude that it provided the jury with credible evidence to determine future health care expenses.

¶ 28. Here the alleged contradictions are contrived. When counsel for White asked Dr. Hanacik if it was his opinion to a reasonable degree of chiropractic certainty that Julie Weber would need 20 to 25 visits a year for at least the next 35 years, he answered:

That is an example of what we've seen this year. That does not mean - I mean, next year I may see her only three times. It depends on what is happening with her.

¶ 29. Later in his testimony, Dr. Hanacik acknowledged that he could not see into the future and give a "ballpark figure" as to how many times Julie Weber would need treatment. This is consistent with Dr. Hanacik's repeated insistence that Julie Weber would require future treatment on an "as-needed basis," depending upon her level of activity.

¶ 30. The law does not require mathematical certainty to determine future health care expenses. As long as the decision is based on probability and not possibility, the court can make such an award. Bleyer, 19 Wis. 2d at 312.

¶ 31. In this case, two doctors testified that Julie Weber suffered a permanent shoulder impingement as a result of the accident. Dr. Hanacik further explained that she would need future treatment, depending upon her level of activity. Based upon his prior treatment and a review of her medical records, he estimated that her future care would "probably be around 20 to 25 visits a year, probably, on an average." Despite his statements on cross-examination, he never withdrew from this prediction. Because there is credible evidence from which the jury could determine future chiropractic expenses, we do not disturb its award.

IV

¶ 32. We turn next to White's request for relief from further statutory interest. That interest accrues from the date of the offer of settlement until the judgment is paid. Wis. Stat. § 807.02(4); Management Computer Services, 224 Wis. 2d at 331; see also Ritt v. Dental Care Associates, 199 Wis. 2d 48, 75, 543 N.W.2d 852 (Ct. App. 1995).

¶ 33. In the present case, White filed a motion for relief pending appeal with the circuit court. Specifically, she sought the court's permission to pay the clerk of courts a portion of the judgment to avoid the accumulation of further statutory interest.

¶ 34. As the court of appeals recognized in Management Computer Services, the circuit court has broad discretion to stay execution of a judgment and to condition a stay upon terms it deems appropriate. 224 Wis. 2d at 330. Likewise, the circuit court has broad discretion to grant a partial stay. Scullion v. Wisconsin Power & Light Co., 2000 WI App 120, ¶ 31, 237 Wis. 2d 498, 614 N.W.2d 565. That authority is based on Wis. Stat. § 808.07(2).

¶ 35. There are four factors for the circuit court to consider when asked to grant a stay of a money judgment pending appeal. Scullion, 237 Wis. 2d 498, ¶¶ 18-22. They are: (1) the issues appealed and the likelihood of success on those issues; (2) the need to ensure the collectibility of the judgment and accumulated interest if the appellant does not succeed on appeal; (3) the interest of the appellant; and (4) harm to the respondent that may result if the judgment is not paid until completion of an unsuccessful appeal. Id. These factors are not intended to be prerequisites, hut rather interrelated considerations that must be balanced together. Id., ¶ 13.

¶ 36. In its oral decision, the circuit court set forth its reasoning. It acknowledged the first factor from Scullion was a difficult one for White. The court had rejected her motion after verdict to apply Ianni's "no case rule." In doing so, it believed its decision was in accordance with the law and that White would not be successful on appeal.

¶ 37. In consideration of the second factor, the need to ensure collectibility of the judgment and interest if White did not succeed on appeal, the court noted the assets of White's insurance company. It concluded that collectibilty was not an issue for the Webers.

¶ 38. The circuit court then examined the third factor: the interest of White. It reasoned that if White won on appeal, there would be no harm to either party. Additionally, the court concluded that if the Webers won on appeal, the only harm to White would be the statutory interest. The court considered White's use of the money in the meantime and determined that it mitigated any harm from the statutory interest.

¶ 39. Finally, the circuit court weighed the fourth Scullion factor, the harm to the Webers. It noted that if the money were paid directly to the clerk, the Webers would not have control of it and would not receive the statutory interest on the judgment. Because this factor weighed heavily in the Webers' favor, the court could not justify granting the requested relief to White.

¶ 40. In the end, we are satisfied that the circuit court examined the relevant facts, applied the correct standard of law, demonstrated a rational process, and reached a decision that a reasonable judge could make. Therefore, we affirm the court of appeals' order upholding the circuit court's exercise of discretion.

V

¶ 41. In sum, we agree with the court of appeals that the circuit court did not erroneously exercise its discretion in denying respondents' motion to pay the clerk of courts. We disagree, however, with its conclusion that the verdict for future health care expenses was based on fatally contradictory testimony and thus not supported by any credible evidence. Because we determine that a reasonable jury could have awarded future health care expenses, we reverse the court of appeals and remand the cause to the circuit court for determination of costs and statutory interest.

By the Court. — The decision of the court of appeals is reversed and the cause is remanded to the circuit court.

        Weber v. White, 2003 WI App 240, 267 Wis. 2d 862, 672 N.W.2d 151 (reversing a judgment of the circuit court for Milwaukee County, Thomas R. Cooper, Judge).

        Weber v. White, No. 03-0471, unpublished order (Wis. Ct. App. Sept. 23, 2003) (affirming a determination of the circuit court for Milwaukee County, Thomas R. Cooper, Judge).

       All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.
      Wisconsin Stat. § 807.01 provides in relevant part:
      (3) After issue is joined but at least 20 days before trial, the plaintiff may serve upon the defendant a written offer of settlement for the sum, or property, or to the effect therein specified, with costs. If the defendant accepts the offer and serves notice thereof in writing, before trial and within 10 days after receipt of the offer, the defendant may file the offer, with proof of service of the notice of acceptance, with the clerk of court. If notice of acceptance is not given, the offer cannot be given as evidence nor mentioned on the trial. If the offer of settlement is not accepted and the plaintiff recovers a more favorable judgment, the plaintiff shall recover double the amount of the taxable costs.
      (4) If there is an offer of settlement by a party under this section which is not accepted and the party recovers a judgment which is greater than or equal to the amount specified in the offer of settlement, the party is entitled to interest at the annual rate of 12% on the amount recovered from the date of the offer of settlement until the amount is paid. Interest under this section is in lieu of interest computed under ss. 814.04(4) and 815.05(8).

       Since we do not disturb the jury award, the verdict exceeded the Webers' settlement offer of $35,000. Therefore, under Wis. Stat. § 807.01, the Webers are entitled to double fees and costs as awarded by the circuit court.

       We note that White did not file a cross-petition for review of this issue. However, once a case is before us, it is within our discretion to review any substantial issue that the case presents. Univest Corp. v. General Split Corp., 148 Wis. 2d 29, 32, 435 N.W.2d 234 (1989). Here, we choose to exercise that discretion, as the challenged action is capable of repetition yet may evade appellate review.

       Wisconsin Stat. § 808.07(2) provides in relevant part:

        (2) Authority of a court to grant relief pending appeal.
      (a) During the pendency of an appeal, a trial court or an appellate court may:
      1. Stay execution or enforcement of a judgment or order;
      2. Suspend, modify, restore or grant an injunction; or
      3. Make any order appropriate to preserve the existing state of affairs or the effectiveness of the judgment subsequently to he entered.

       These factors are taken from State v. Gudenschwager, 191 Wis. 2d 431, 529 N.W.2d 225 (1995), Wis. Stat. § 808.07 and its legislative history, and specific interests involved when a money judgment is appealed. Scullion v. Wisconsin Power & Light Co., 2000 WI App 120, ¶ 11, 237 Wis. 2d 498, 614 N.W.2d 565.

       The court discussed a fifth factor, the interest of the public, but concluded it is not likely to be relevant in an appeal of a money judgment. Id., ¶ 23.


text:
    In the Matter of Disciplinary Proceedings Against Duane Craig Mikkelsen, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Duane Craig Mikkelsen, Respondent.
    Supreme Court

      No. 04-0336-D.

      Decided June 8, 2004.

    2004 WI 72
    (Also reported in 682 N.W.2d 327.)
   The Court entered the following order on this date:

On February 3, 2004, the Office of Lawyer Regulation (OLR) filed a disciplinary complaint against Attorney Duane Craig Mikkelsen asking this court to impose reciprocal discipline identical to that imposed on Attorney Mikkelsen by the Oregon Supreme Court. That court suspended Attorney Mikkelsen's Oregon law license for one year, effective January 17, 2004. On February 4, 2004, this court issued an order to show cause directing Attorney Mikkelsen to show cause in writing by February 24, 2004 why the imposition of the identical discipline imposed by the Oregon Supreme Court would be unwarranted. Attorney Mikkelsen has responded to the order to show cause admitting that he was suspended by the Oregon Supreme Court for one year and asserting that all but 90 days of that period was stayed.

Attorney Mikkelsen was admitted to practice law in Wisconsin in 1977 and he became licensed to practice law in Oregon in 1982. In 1982, Attorney Mikkelsen's Wisconsin license was suspended for his failure to pay dues to the Wisconsin State Bar. His Wisconsin license remains suspended.

The one-year suspension in Oregon resulted from misconduct involving dishonesty, fraud, deceit or misrepresentation; neglect of a legal matter; and failure to promptly return client materials in one matter, and engaging in conduct including dishonesty, fraud, deceit or misrepresentation; lawyer self-interest conflict, and neglect of a legal matter in another matter.

SCR 22.22(3) provides that this court shall impose the identical discipline or license suspension unless the procedure in the other jurisdiction was so lacking in notice or opportunity to be heard as to constitute a due process violation; there was such an infirmity of proof establishing the misconduct that this court should not accept as final the misconduct finding; or the misconduct justifies substantially different discipline here. Neither OLR nor Attorney Mikkelsen contend, nor does this court find, that any of these three exceptions exist.

Accordingly,

IT IS ORDERED that the license of Duane Craig Mikkelsen to practice law in the state of Wisconsin be suspended for one year, effective as of January 17, 2004;

IT IS FURTHER ORDERED that this suspension does not affect the existing suspensions for failure to pay dues to the Wisconsin State Bar or failure to comply with CLE requirements which would also have to be satisfied in order for Attorney Mikkelsen's license to practice law in Wisconsin to be reinstated;

IT IS FURTHER ORDERED that Attorney Mikkelsen shall comply, if he has not already done so, with the requirements of SCR 22.26 pertaining to activities following suspension.

Bradley, J., concurs but would suspend Attorney Mikkelsen's license as of the date of this order.


text:
    In the Matter of Disciplinary Proceedings Against Eric A. Stearn, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Eric A. Stearn, Respondent.
    Supreme Court

      No. 04-1183-D.

      Decided June 8, 2004.

    2004 WI 73
    (Also reported in 682 N.W.2d 326.)
   The Court entered the following order on this date:

Attorney Eric A. Stearn has filed a petition for consensual license revocation under SCR 22.19. Attorney Stearn's Wisconsin law license was suspended on November 7, 2003 based on criminal convictions for homicide by intoxicated use of a vehicle and causing great bodily harm by intoxicated use of a vehicle. He is currently serving a 12-year prison sentence.

Attorney Stearn is currently the subject of an Office of Lawyer Regulation (OLR) misconduct investigation. Attorney Stearn submits under SCR 22.19(2) that he cannot successfully defend against the misconduct allegations, which include the OLR's assertion that Stearn's convictions establish conduct that reflects adversely on Stearn's honesty, trustworthiness or fitness as a lawyer in other respects, contrary to SCR 20:8.4(b).

The OLR supports Attorney Stearn's petition for consensual license revocation.

IT IS ORDERED that the petition for consensual license revocation is granted.

IT IS FURTHER ORDERED that the license of Eric A. Stearn to practice law in Wisconsin is revoked effective the date of this order.

IT IS FURTHER ORDERED that Eric A. Stearn shall comply with the requirements of SCR 22.26 relating to activities following revocation.


text:
    In the Matter of Disciplinary Proceedings Against Joseph F. Paulus, Attorney at Law: Office of Lawyer Regulation, Complainant, v. Joseph F. Paulus, Respondent.
    Supreme Court

      No. 04-1421-D.

      Decided June 8, 2004.

    2004 WI 71
    (Also reported in 682 N.W.2d 326.)
   The Court entered the following order on this date:

Attorney Joseph F. Paulus has filed a petition for consensual license revocation under SCR 22.19. Attorney Paulus is currently the subject of an Office of Lawyer Regulation (OLR) misconduct investigation. Attorney Paulus submits that under SCR 22.19(2) he cannot successfully defend himself against the misconduct allegations, which include his guilty plea to a federal count of accepting bribes totaling approximately $48,050 while holding the office of Winnebago County District Attorney, in exchange for benefits to defendants, including the dismissal or reduction of charges, return of seized property, and a request that another District Attorney give lenient treatment to a defendant and an additional federal count of filing a 1999 Form 1040 income tax return on which Paulus knowingly underreported his income for that year. Paulus's conduct in accepting bribes in public office, making misrepresentations to the court, and filing a knowingly false income tax return would be in violation of SCR 20:1.7(b), conflict of interest; SCR 20:3.3, making a false statement of fact or law to a tribunal; SCR 20:8.4(b), committing a criminal act that reflects adversely on the lawyer's honesty, trustworthiness and fitness as a lawyer; and SCR 20:8.4(c), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. On April 26, 2004, pursuant to a plea agreement, Paulus entered guilty pleas to both federal counts. As a part of the plea agreement, he agreed to voluntarily surrender his license to practice law in all jurisdictions by the date of sentencing. He is currently awaiting sentencing.

The OLR supports Attorney Paulus's petition for consensual license revocation.

IT IS ORDERED that the petition for consensual license revocation is granted.

IT IS FURTHER ORDERED that the license of Joseph F. Paulus to practice law in Wisconsin is revoked effective the date of this order.

IT IS FURTHER ORDERED that Joseph F. Paulus shall comply with the requirements of SCR 22.26 relating to activities following revocation.