State v. Marcos Banuelos

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 19, 2026
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2025AP830 Cir. Ct. No. 2016CF1512

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

MARCOS BANUELOS,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Dane County:
NICHOLAS J. MCNAMARA, Judge. Affirmed.

Before Graham, P.J., Blanchard, and Kloppenburg, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2025AP830

¶1 PER CURIAM. Marcos Banuelos, pro se, appeals a circuit court
order denying his postconviction motion, brought under WIS. STAT. § 974.06
(2023-24), to withdraw his plea based on newly discovered evidence.1 We reject
Banuelos’s arguments and affirm.

BACKGROUND

¶2 Banuelos was charged with one count of misdemeanor disorderly
conduct. He was also charged with six felony counts of sexual assault-related
conduct that, taken together, involved multiple children. In the lead-up to
Banuelos’s trial, the State moved to admit various pieces of “other acts” evidence
related to Banuelos’s alleged history of sexual contact with children.

¶3 While represented by retained counsel, Banuelos pled guilty to one
count of second-degree sexual assault of “A.B.,” a child under 16 years of age.2
Pursuant to a negotiated plea agreement, the remaining counts were dismissed and
read in for sentencing. As part of the plea agreement, the State also agreed to cap
its sentencing recommendation for initial confinement at five years. The court
sentenced Banuelos to ten years of initial confinement and 15 years of extended
supervision.

¶4 Banuelos, by counsel, filed a postconviction motion seeking to
withdraw his guilty plea, alleging that his trial counsel provided ineffective
assistance of counsel. The circuit court denied the motion, and Banuelos

1
All references to the Wisconsin Statutes are to the 2023-24 version.
2
To protect the dignity and privacy of the victim, we refer to her as A.B., using initials
that do not correspond to her real name. See WIS. STAT. RULES 809.19(1)(g) and 809.86.

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appealed. This court affirmed the circuit court’s judgment and order in a per
curiam decision. See State v. Banuelos, No. 2022AP741, unpublished slip op.
(WI App Nov. 30, 2023).

¶5 In December 2024, Banuelos, representing himself, filed the WIS.
STAT. § 974.06 postconviction motion that is the subject of this appeal. In his
motion, Banuelos argued, among other things, that he is entitled to an evidentiary
hearing and to withdrawal his guilty plea on the basis of newly discovered
evidence.

¶6 We pause here to briefly describe the newly discovered evidence
offered by Banuelos. Banuelos asserts that, after his conviction, he discovered a
news article entitled “Four New Complaints Outlined Against DeForest Police
Chief” (hereafter “the article”). The article described certain allegations that were
made against the police chief of the DeForest Police Department (DFPD).
According to the article, the police chief was alleged to have engaged in various
types of misconduct, including the following: (1) he was heard in a video making
comments about a group of African-American men; (2) he allowed inappropriate
content to be posted on his own and the DFPD’s social media pages; (3) he failed
to investigate an employee despite multiple complaints about conduct that could
be considered sexual harassment; and (4) he publicly distributed a confidential
video portraying a graphic domestic violence event. In his motion to the court,
Banuelos argued that the article exposed evidence that the DFPD police chief
“condoned, ratified, and encouraged rampant malfeasance throughout the
department.”

¶7 Banuelos’s argument to the circuit court in support of his WIS. STAT.
§ 974.06 motion can most favorably be construed as follows. Banuelos argued

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that he is entitled to withdraw his plea because DFPD was the department that
investigated the charges against Banuelos, and the misconduct exposed in the
article gives Banuelos reason to believe that the officers handling his case were
engaged in unchecked misconduct. Additionally, he argued that the State
committed a Brady violation by failing to disclose evidence in its possession
regarding the alleged misconduct exposed in the article. See Brady v. Maryland,
373 U.S. 83 (1963). Under these circumstances, Banuelos argued, he is entitled to
a postconviction hearing to prove that, had the State disclosed information that a
DFPD employee was not investigated by the police chief despite multiple
complaints about sexual harassment, Banuelos could have used the information to
attack the credibility of the officers involved in handling Banuelos’s case.

¶8 In a written decision and order, the circuit court denied Banuelos’s
motion without an evidentiary hearing. The court concluded that Banuelos did not
show by clear and convincing evidence that withdrawal of his guilty plea is
necessary to correct a manifest injustice. In denying Banuelos’s request for an
evidentiary hearing on the motion, the court determined that Banuelos’s
allegations were conclusory and that Banuelos did not allege sufficient material
facts that, if true, would entitle him to withdraw his plea.

DISCUSSION

¶9 Any claim that could have been raised in a prior postconviction
motion or on direct appeal cannot form the basis for a claim under WIS. STAT.
§ 974.06 unless the defendant demonstrates a sufficient reason for failing to raise
the claim in the prior postconviction motion or appeal. State v. Escalona-
Naranjo, 185 Wis. 2d 168, 185, 517 N.W.2d 157 (1994). Banuelos asserts that
the fact that his motion is based on newly discovered evidence constitutes a

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sufficient reason for failing to raise his current claims in his prior motion and
appeal.

¶10 On appeal, Banuelos argues that the circuit court erred in concluding
that Banuelos did not establish that his purported newly discovered evidence
constitutes a manifest injustice. He also asserts that the court erred in denying his
request for a hearing to prove that the State violated its Brady obligations.

¶11 A defendant seeking to withdraw a plea on the basis of newly
discovered evidence must make a clear and convincing showing that the newly
discovered evidence establishes that a manifest injustice has occurred. State v.
Krieger, 163 Wis. 2d 241, 255, 471 N.W.2d 599 (Ct. App. 1991). To prevail on
such a claim, the defendant must show by clear and convincing evidence that:
“(1) the evidence was discovered after conviction; (2) the defendant was not
negligent in seeking evidence; (3) the evidence is material to an issue in the case;
and (4) the evidence is not merely cumulative.” State v. McAlister, 2018 WI 34,
¶31, 380 Wis. 2d 684, 911 N.W.2d 77. If the defendant establishes these four
criteria, the circuit court must then “determine whether a reasonable probability
exists that a different result would be reached in a trial.”3 Id., ¶32 (citation
omitted). A circuit court’s decision to grant or deny a motion for plea withdrawal
is discretionary, and we will reverse the decision only if the court erroneously
exercised its discretion. Krieger, 163 Wis. 2d at 250.

3
See State v. Shallcross, 2025 WI App 66, ¶¶32-34, 418 Wis. 2d 575, 28 N.W.3d 194
(considering an argument that the “different result would be reached at trial” standard, as opposed
to a standard under which the defendant would have not have entered a guilty plea, is a mismatch
when a defendant is seeking to withdraw a plea based on newly discovered evidence, but
concluding that the court was bound to apply the first standard based on precedent from our
supreme court).

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No. 2025AP830

¶12 In its decision and order denying Banuelos’s requested relief, the
circuit court assumed without deciding that Banuelos met the first, second, and
fourth criteria. However, in regards to the third criteria, the court determined that
Banuelos failed to establish that the newly discovered evidence is material to an
issue in the case. For reasons we now explain, we agree.4

¶13 Banuelos proposed to use the article to attack the credibility of
DFPD, the institution responsible for his investigation, and to attack the credibility
of some or all of the individual officers within the DFPD who worked on his case.
Impeachment evidence may be material to a defendant’s case “if the witness
whose testimony is attacked ‘supplied the only evidence linking the defendant(s)
to the crime.’” State v. Rockette, 2006 WI App 103, ¶41, 294 Wis. 2d 611, 718
N.W.2d 269 (citation omitted).

¶14 Here, Banuelos pled guilty to the sexual assault of a child, A.B., and,
if the plea deal were put to the side, the State would be allowed to pursue the five
other sexual assault-related counts involving multiple children and one count of
disorderly conduct that it agreed to dismiss pursuant to the plea deal. Banuelos
makes no assertion that any DFPD police officer’s testimony would provide the
sole evidence linking him to any or all of the charged crimes. Accordingly, there
is no basis to conclude that the testimony of any officer would “suppl[y] the only
evidence linking the defendant[] to the crime.” See id.

4
The circuit court also determined that Banuelos failed to show that the newly
discovered evidence established a reasonable likelihood of a different result at trial. We need not
address the court’s determination about the likelihood of a different result at trial because our
determination about materiality is dispositive.

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No. 2025AP830

¶15 Impeachment evidence may also be considered material “where the
likely impact on the witness’s credibility would have undermined a critical
element of the prosecution’s case.” Id. However, Banuelos fails to identify any
link between the police chief’s alleged misconduct and the credibility of any
DFPD officer who worked on Banuelos’s case and who may have testified against
Banuelos at trial.

¶16 At most, Banuelos appears to argue that, since the newly discovered
evidence is a report that the police chief allegedly failed to investigate an
employee for alleged sexual harassment of others, it logically follows that the
police chief encouraged department-wide “rampant malfeasance” that would have
led officers to decline to investigate Banuelos’s alleged victims and his statements
regarding his defense. There are multiple problems with this argument. Among
other things, there is nothing in the allegations about the police chief as presented
by Banuelos that appears to relate more broadly to the work of the department as a
whole or to any failure by specific officers in investigating complaints of crime
and collecting evidence. Accordingly, nothing that the article would have
undermined a critical element of the prosecution’s case against Banuelos.

¶17 For these reasons, we conclude that the circuit court did not
erroneously exercise its discretion in concluding that Banuelos failed to establish
that the newly discovered evidence is material.

¶18 Banuelos also argues that the circuit court erred in denying his
postconviction motion without a hearing. As we best understand it, Banuelos
seems to be arguing that he is entitled to a hearing to prove that the State
suppressed material evidence when it failed to disclose the allegations about the
police chief’s misconduct. See Brady, 373 U.S. at 87 (“suppression by the

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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”).

¶19 A defendant is not automatically entitled to an evidentiary hearing
on his or her postconviction motion. To be entitled to a hearing, a defendant must
allege in his or her motion “sufficient material facts that, if true, would entitle the
defendant to relief.” State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682
N.W.2d 433. The court need not hold a hearing if the motion does not raise
sufficient material facts, if the motion presents only conclusory allegations, or if
the record conclusively demonstrates that the defendant is not entitled to relief.
State v. Ruffin, 2022 WI 34, ¶28, 401 Wis. 2d 619, 974 N.W.2d 432.

¶20 In many respects, Banuelos’s argument that he is entitled to a
hearing to prove a Brady violation mirrors the argument we reject above. As
stated, Banuelos seems to be arguing that, because the police chief allegedly failed
to investigate claims that one employee engaged in sexual harassment, that could
support an argument that the DFPD police officers handling Banuelos’s case were
engaged in unchecked misconduct when they declined to investigate the veracity
of the allegations against Banuelos.

¶21 Putting to the side the issue of whether Banuelos’s allegations about
an inadequate investigation would amount to a Brady violation even if proven, we
conclude that the circuit court was not required to hold a hearing. Banuelos does
not identify any material facts that would establish a link between the police
chief’s alleged misconduct and any failure to investigate the case against
Banuelos; instead, he makes only a conclusory assertion that officers failed to
sufficiently investigate Banuelos’s alleged victims and his statements regarding

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No. 2025AP830

his innocence, and that their failures were condoned by the police chief. The court
was not required to hold a hearing to address Banuelos’s conclusory allegations.

¶22 In sum, we conclude that the circuit court did not erroneously
exercise its discretion in denying Banuelos’s request for plea withdrawal without
holding a hearing. We affirm.5

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

5
Throughout the proceedings on his motion, Banuelos has also made a number of
additional arguments about the police investigation and other subjects that we do not address in
this opinion. We do not address these additional arguments because Banuelos makes no attempt
to explain how they are the proper subject of a WIS. STAT. § 974.06 motion and would survive the
procedural bar set forth in State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994).

9