State v. Scott R. Shallcross

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.
October 7, 2025
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. 2023AP362 Cir. Ct. No. 2009CF5594

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

SCOTT R. SHALLCROSS,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JEAN M. KIES, Judge. Affirmed.

Before White, C.J., Colón, P.J., and Geenen, J.

¶1 GEENEN, J. Scott R. Shallcross pleaded guilty to two counts of
homicide by intoxicated use of a vehicle. To support the factual basis for his pleas,
Shallcross stipulated to the facts alleged in the criminal complaint, including that he
was driving the vehicle that caused the accident. The vehicle belonged to
No. 2023AP362

Shallcross’s friend, Daniel Gorectke, who was a passenger in the vehicle when the
accident occurred.

¶2 After extensive postconviction litigation in the circuit court,1 this
court,2 and the federal courts,3 Shallcross, through counsel, filed the WIS. STAT.
§ 974.06 motion underlying this appeal seeking to withdraw his guilty pleas based
on newly discovered evidence. Specifically, Shallcross identifies a DNA report that
shows the presence of an unidentified third person’s DNA on the steering column
airbag of Gorectke’s vehicle, and he argues that this third person was driving the
vehicle. On appeal, Shallcross, pro se, argues that the State committed a Brady4
violation because the DNA report is exculpatory and the State withheld it.
Shallcross complains that the circuit court erroneously applied the legal standard
that applies to a defendant’s postsentencing motion to withdraw their plea based on
newly discovered evidence and should instead have analyzed his motion as a Brady
claim.

¶3 The State argues that Shallcross is judicially estopped from arguing
that he was not the driver of Gorectke’s vehicle because he admitted that he was the

1
The Honorable Kevin E. Martens accepted Shallcross’s guilty pleas, sentenced him, and
denied his first motion to withdraw his guilty pleas. The Honorable Jeffrey A. Wagner denied
Shallcross’s first WIS. STAT. § 974.06 (2023-24) motion. The Honorable Glenn H. Yamahiro
partially denied Shallcross’s second § 974.06 motion. The Honorable Jean M. Kies denied the
remainder of Shallcross’s second § 974.06 motion. On appeal, we review only Judge Kies’s order,
and each judge is referred to as the “circuit court.”

All references to the Wisconsin Statutes are to the 2023-24 version.
2
State v. Shallcross, No. 2011AP2432-CR, unpublished slip op. (WI App Oct. 23, 2012);
State v. Shallcross, No. 2014AP1121, unpublished slip op. (WI App. Apr. 21, 2015).
3
Shallcross v. Pollard, No. 15-CV-1136, 2016 WL 6072381 (E.D. Wis. Oct. 17, 2016);
Shallcross v. Foster, No. 16-4169, 2017 WL 11680207 (7th Cir. May 12, 2017); Shallcross v.
Foster, No. 17-7754, 584 U.S. 938 (Apr. 16, 2018).
4
Brady v. Maryland, 373 U.S. 83 (1963).

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No. 2023AP362

driver by pleading guilty. The State also argues that the DNA report was not
exculpatory, so Shallcross’s Brady claim must fail.

¶4 We conclude that Shallcross is not judicially estopped from arguing
that newly discovered evidence (i.e., the DNA report) supports the assertion that he
was not driving Gorectke’s vehicle, and that this evidence justifies the withdrawal
of his guilty pleas. However, we agree with the State that the DNA report is not
exculpatory. Accordingly, it cannot be the basis of a Brady claim.

¶5 Finally, the State asks us to “clarify the test for the fifth criterion that
must be met to withdraw a guilty plea based on newly discovered evidence—a
reasonable probability of a different outcome” if the case were to go to trial with the
new evidence. We conclude that we are bound by State v. McCallum, 208 Wis. 2d
463, 561 N.W.2d 707 (1997), and other binding cases that establish that after
determining that the evidence is “newly discovered evidence,” the test is whether a
jury would have a reasonable doubt as to the defendant’s guilt in a trial that included
the newly discovered evidence.

¶6 In this case, the circuit court applied the incorrect legal standard,
asking not whether a jury would have reasonable doubt as to Shallcross’s guilt in a
trial that included the DNA report, but instead, whether Shallcross would have
insisted on going to trial had he known about the DNA report prior to entering his
plea. In some circumstances, as in McCallum, remanding the matter to the circuit
court to apply the proper legal standard may be necessary. However, on this record
and under these circumstances, remand is unnecessary.

¶7 Applying the proper legal standard to this record, we conclude that it
is not reasonably probable that a jury would have reasonable doubt as to Shallcross’s
guilt in a trial that included the DNA report. The record in this case compels such

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a conclusion. Indeed, the DNA report’s failure to create a reasonable probability
that a jury would have reasonable doubt of Shallcross’s guilt is the reason why the
circuit court concluded that Shallcross would not have insisted on going to trial had
he known about the report prior to his plea. Accordingly, we affirm the circuit
court’s denial of Shallcross’s motion to withdraw his pleas.

BACKGROUND

¶8 The complaint alleges that on November 27, 2009, an intoxicated
Shallcross was driving Gorectke’s vehicle with Gorectke in the passenger seat when
he slammed into a truck, killing the truck’s two occupants. The complaint includes
a confession by Shallcross, in which he states that immediately after the crash, he
realized the truck was on fire, unbuckled his seatbelt, and crawled into the back seat,
where he curled up and cried after hearing the truck explode.

¶9 Gorectke also gave a statement to police. He stated that moments after
the accident, Shallcross crawled from the driver’s seat to the back seat and told
Gorectke to tell police that there was an unknown third person driving the vehicle.
Gorectke stated that there was not a third person driving the vehicle and that
Shallcross was the driver at the time of the accident.

¶10 Shallcross was charged with two counts of homicide by intoxicated
use of a vehicle, two counts of homicide by intoxicated use of a vehicle (prohibited
alcohol concentration) (“PAC charges”), and one count of operating a motor vehicle
after revocation causing death. Pursuant to a plea agreement, the State dismissed
outright the PAC charges and the operating after revocation charge, and Shallcross
pleaded guilty to the two counts of homicide by intoxicated use of a vehicle. During
his plea colloquy, Shallcross stipulated to the facts alleged in the complaint to
establish the factual basis for his plea. During his allocution, Shallcross again

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No. 2023AP362

admitted to driving Gorectke’s vehicle while intoxicated and causing the accident.
Shallcross was sentenced to two consecutive terms each consisting of 12 years in
prison followed by six years of extended supervision.

¶11 In 2011, Shallcross moved to withdraw his guilty pleas based on
ineffective assistance of counsel. The circuit court denied the motion without
holding a Machner5 hearing. Shallcross appealed, and we affirmed. The Wisconsin
Supreme Court denied Shallcross’s petition for review as untimely, so in 2013, he
returned to the circuit court and filed a WIS. STAT. § 974.06 motion. He again
challenged the effectiveness of trial counsel on new grounds, and he also challenged
the effectiveness of his original postconviction counsel. The circuit court denied
the motion without a Machner hearing, Shallcross appealed, and we affirmed.
Shallcross timely petitioned for review in the Wisconsin Supreme Court, but it
denied review. Shallcross then proceeded to federal court and filed a petition for a
writ of habeas corpus, which was denied in 2016. The United States Court of
Appeals for the Seventh Circuit denied Shallcross’s request for a certificate of
appealability. The United States Supreme Court denied his petition for a writ of
certiorari.

¶12 In 2022, Shallcross filed the WIS. STAT. § 974.06 motion underlying
this appeal. He alleged that newly discovered evidence not known at the time of his
pleas, coupled with the State’s failure to disclose this exculpatory evidence, required
the circuit court to allow him to withdraw his pleas and proceed to trial. Shallcross
identified two pieces of newly discovered evidence that formed the basis of his
motion to withdraw his pleas: (1) sworn responses to interrogatories from Gorectke
in a wrongful death lawsuit related to the accident, where Shallcross claims that

5
State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979).

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No. 2023AP362

Gorectke contradicted his earlier statement to police that Shallcross was driving the
vehicle when the accident occurred; and (2) a DNA report that shows the presence
of an unidentified third person’s DNA on the steering column airbag of the vehicle,
supporting Shallcross’s argument that a third person was driving Gorectke’s vehicle.

¶13 The circuit court rejected the State’s responsive argument that
Shallcross was judicially estopped from arguing that he was not the driver of
Gorectke’s vehicle, explaining that applying judicial estoppel would contradict our
decision in State v. Ferguson, 2014 WI App 48, 354 Wis. 2d 253, 847 N.W.2d 900.
The circuit court then denied the portion of Shallcross’s motion based on Gorectke’s
responses to interrogatories, concluding both that Shallcross was procedurally
barred from raising this issue, State v. Escalona-Naranjo, 185 Wis. 2d 168, 181-
82, 517 N.W.2d 157 (1994), and that Shallcross was negligent in seeking evidence
of Gorectke’s recollection of the accident.6 As to Shallcross’s remaining claim

6
See State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997) (explaining that
“[f]or newly discovered evidence to constitute a manifest injustice and warrant the withdrawal of
a plea,” defendants must prove by clear and convincing evidence, among other things, that they
were “not negligent in seeking evidence”). The circuit court was persuaded by the State’s analysis:

The fact that Gorectke answered written interrogatories is not
material. What is material [are] his answers to questions in those
interrogatories. Gorectke was a person known to [Shallcross] at
the time he entered his guilty plea and Gorectke was known to
[Shallcross] as a witness. [Shallcross]’s failure, prior to the entry
of his pleas, to determine what Gorectke remembered of the
collision was negligent.

On appeal, Shallcross does not address the circuit court’s conclusion that he was negligent
in investigating Gorectke’s recollection of events, stating in his reply brief that the fact that he
discovered the responses after he pleaded guilty was a sufficient reason for failing to raise the issue
sooner. Accordingly, we deem this issue to be abandoned, and we discuss it no further. Industrial
Risk Insurers v. American Eng’g Testing, Inc., 2009 WI App 62, ¶25, 318 Wis. 2d 148, 769
N.W.2d 82 (“[W]e will not abandon our neutrality to develop arguments[.]”); A.O. Smith Corp. v.
Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588 N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in
the [circuit] court, but not raised on appeal, is deemed abandoned.”).

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regarding the DNA report, the circuit court scheduled an evidentiary hearing to
determine whether the report was exculpatory, whether it constituted newly
discovered evidence, and whether Shallcross would have rejected the plea deal and
gone to trial had the report been disclosed before the plea.

¶14 After the evidentiary hearing, the circuit court closely scrutinized the
DNA report and other evidence, and it concluded that the DNA report was not
exculpatory. Shallcross claimed that the DNA report supported the assertion that a
third person, observed running from the scene but who was not seen exiting the
vehicle, was the driver. The circuit court acknowledged that the DNA report
showed the presence of three different individuals’ DNA on the steering column
airbag of the vehicle (namely, that of Shallcross, Gorectke, and an unidentified third
person), however, it observed that Shallcross’s blood, and only Shallcross’s blood,
was found on the driver’s side, side airbag of Gorectke’s vehicle. The court
concluded that the DNA report was “more or less determinative of the issue of who
was driving,” especially given the strength of the State’s other evidence showing
that Shallcross was the driver. It then stated:

In the final analysis, the DNA report, when analyzed
in the context of all of the available evidence at the time of
the plea would not produce a different result in this case.

That different result, of course, would have been that
the defendant would have declined to enter a plea or insisted
on a trial.

Accordingly, it denied Shallcross’s motion.

¶15 Shallcross appeals.

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DISCUSSION

I. The circuit court did not erroneously exercise its discretion by
refusing to apply judicial estoppel.

¶16 We begin by discussing the State’s argument that Shallcross is
judicially estopped from arguing that he was not driving Gorectke’s vehicle because
he admitted to doing so when he pleaded guilty. Judicial estoppel is an equitable
doctrine that is intended “to protect against a litigant playing ‘fast and loose with
the courts’ by asserting inconsistent positions.” State v. Fleming, 181 Wis. 2d 546,
557, 510 N.W.2d 837 (Ct. App. 1993) (quoting Yanez v. United States, 989 F.2d
323, 326 (9th Cir. 1993)). “The doctrine precludes a party from asserting a position
in a legal proceeding and then subsequently asserting an inconsistent position.”
State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996).

¶17 We review a circuit court’s decision whether to apply judicial estoppel
under the erroneous exercise of discretion standard because “it is the prerogative of
the [circuit] court to invoke judicial estoppel at its discretion.” Fleming, 181
Wis. 2d at 558. “The court erroneously exercises its discretion when it applies the
wrong legal standard or makes a decision not reasonably supported by the facts of
record.” State v. Avery, 2013 WI 13, ¶23, 345 Wis. 2d 407, 826 N.W.2d 60.

¶18 The State argues that because Shallcross pleaded guilty (as opposed
to entering a no-contest7 or Alford8 plea), he admitted to driving the vehicle that
caused the fatal accident, and no case “allows a defendant to unequivocally admit

7
“A criminal defendant, by pleading no contest, declines to exercise his or her right to put
the State to their burden of proving him [or her] guilty beyond a reasonable doubt, but does not
admit unqualified guilt.” State v. Black, 2001 WI 31, ¶15, 242 Wis. 2d 126, 624 N.W.2d 363.
8
North Carolina v. Alford, 400 U.S. 25 (1970). “An Alford plea is a plea in which the
defendant agrees to accept a conviction while simultaneously maintaining his or her innocence.”
State v. Kelty, 2006 WI 101, ¶18 n.10, 294 Wis. 2d 62, 716 N.W.2d 886.

8
No. 2023AP362

at a plea hearing that he committed an act and turn around at a later court hearing
and unequivocally deny under oath that he committed that same act.”

¶19 We disagree, at least insofar as the State seeks to impose a rule that
requires circuit courts to apply judicial estoppel where a defendant bases a motion
for plea withdrawal on newly discovered evidence that contradicts a fact admitted
to as a consequence of pleading guilty. Ultimately, the State’s proposed rule is
incompatible with our case law allowing newly discovered evidence as the basis for
withdrawing a guilty plea.

¶20 In refusing to apply judicial estoppel, the circuit court relied on our
decision in Ferguson. In Ferguson, we applied the newly discovered evidence test
where the defendant sought to withdraw his guilty plea based on newly discovered
recantation evidence that contradicted a fact to which Ferguson admitted when he
pleaded guilty (i.e., shooting the victim). Id., 354 Wis. 2d 253, ¶¶5-24. The State
complains that the circuit court erroneously exercised its discretion by concluding
that Ferguson controlled the issue, observing that neither we nor the parties
discussed judicial estoppel in Ferguson.

¶21 While the State is correct that Ferguson does not discuss judicial
estoppel, the circuit court did not erroneously exercise its discretion by relying on
Ferguson for its refusal to apply judicial estoppel. In our view, the State’s argument
that the circuit court erroneously exercised its discretion by refusing to apply
judicial estoppel represents a blanket rule that, if accepted, would directly contradict
Ferguson and other controlling cases that apply the McCallum newly discovered
evidence test to motions to withdraw guilty pleas. That is, the State’s argument
boils down to the assertion that after a defendant pleads guilty, they cannot move to
withdraw their pleas based on newly discovered evidence that would tend to negate

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a fact to which the defendant admitted by pleading guilty. Moreover, under the
State’s rule, it would be an erroneous exercise of discretion for a circuit court to
refuse to apply judicial estoppel. This rule cannot coexist with Ferguson.

¶22 In Ferguson, the defendant pleaded guilty to first-degree reckless
homicide while using a dangerous weapon as a party to a crime. Id., 354 Wis. 2d
253, ¶5. Ferguson told the circuit court that it could rely on the facts alleged in the
criminal complaint and on the testimony at the preliminary examination as the
factual basis for his plea. Id., ¶6. He said that there were no facts in the complaint
with which he disagreed. Id. In the complaint and the preliminary examination,
two witnesses said that they saw Ferguson shoot the victim. Id., ¶9. However,
Ferguson moved to withdraw his guilty plea after these two witnesses recanted and
instead identified a different individual as the shooter. Id., ¶¶11, 15. We applied
the standard set out in McCallum applicable to motions to withdraw guilty pleas
based on newly discovered evidence, and we affirmed the circuit court’s denial of
Ferguson’s motion to withdraw his plea. Ferguson, 354 Wis. 2d 253, ¶¶24, 27.

¶23 The circuit court reasonably concluded that applying judicial estoppel
against Shallcross would contradict Ferguson because the newly discovered
evidence in both cases challenges a fact previously admitted to as a consequence of
pleading guilty. The State’s argument that the circuit court erroneously exercised
its discretion by not applying judicial estoppel in this case leads to the conclusion
that defendants may never seek to contradict a fact admitted to as a consequence of
pleading guilty, a conclusion that would directly contradict the analysis in Ferguson
applying the McCallum test under the same circumstances.

¶24 Accordingly, we conclude that the circuit court did not erroneously
exercise its discretion by refusing to apply judicial estoppel based on Ferguson.

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II. Shallcross’s Brady claim fails because the DNA report is not
exculpatory.

¶25 Having concluded that the circuit court did not erroneously exercise
its discretion by refusing to apply judicial estoppel, we now turn to the Brady issue.
Shallcross argues that the circuit court should not have applied the McCallum test
for plea withdrawals based on newly discovered evidence and instead should have
analyzed his motion as asserting a Brady claim.9 The State argues, and the circuit
court concluded, that the DNA report is not exculpatory, so it cannot be the basis of
a Brady claim.

¶26 Under the Fourteenth Amendment, “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 v. Maryland, 373 U.S. 83, 87 (1983). The
evidence must be “favorable to the accused, either because it is exculpatory or
impeaching,” it “must have been suppressed by the State, either willfully or
inadvertently,” and it “must be material” to the defendant’s guilt or punishment.
State v. Wayerski, 2019 WI 11, ¶35, 385 Wis. 2d 344, 922 N.W.2d 468. “[W]e
independently review whether a due process violation has occurred, but we accept
the [circuit] court’s findings of historical fact unless clearly erroneous.” Id.

¶27 We agree with the State and the circuit court that the DNA report is
not exculpatory, so it cannot be the basis of a Brady claim. Shallcross claimed that
the DNA report supported his assertion that a third person, seen running from the

9
Shallcross also argues that the State violated WIS. STAT. § 971.23 by not disclosing the
DNA report. This argument must be rejected without reaching the merits because WIS. STAT.
§ 974.06 can only be used to raise constitutional or jurisdictional challenges. Sec. 974.06(1); Vara
v. State, 56 Wis. 2d 390, 392, 202 N.W.2d 10 (1972); State v. Nickel, 2010 WI App 161, ¶7, 330
Wis. 2d 750, 794 N.W.2d 765.

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No. 2023AP362

scene but who was not seen exiting the vehicle, was the driver. The circuit court
acknowledged that the DNA report showed the presence of three different
individuals’ DNA on the steering column airbag of the vehicle (namely, that of
Shallcross, Gorectke, and an unidentified third person); however, it observed that
Shallcross’s blood, and only Shallcross’s blood, was found on the driver’s side, side
airbag of Gorectke’s vehicle.

¶28 On appeal, Shallcross suggests that, “as explained by experts,” the
type of roll-over crash experienced by Shallcross and Gorectke “ha[s] a tendency to
disperse trace evidence throughout the vehicle,” and this could explain why
Shallcross’s blood was found on the driver’s side, side airbag even though he was
in the back seat. However, Shallcross does not present expert evidence to support
his assertion, and does not explain why Gorectke’s or the unknown third person’s
blood would not similarly be dispersed throughout the vehicle, including on the
driver’s side, side airbag, especially if the unknown third person was driving at the
time of the accident.

¶29 Only Shallcross’s blood was found on both driver’s side airbags: the
steering column airbag and the side airbag. We agree with the circuit court that the
DNA report is “more or less determinative” on the issue of who was driving
Gorectke’s vehicle; it was Shallcross. Accordingly, we reject Shallcross’s Brady
claim because the DNA report was not exculpatory.

III. There is no reasonable probability that a jury would have a
reasonable doubt as to Shallcross’s guilt in a trial that included
the DNA report.

¶30 Finally, having concluded that the DNA report is not exculpatory, we
turn to whether the DNA report constitutes newly discovered evidence justifying
withdrawal of Shallcross’s guilty pleas. We conclude that the DNA report does not

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justify plea withdrawal because there is no reasonable probability that a jury would
have a reasonable doubt as to Shallcross’s guilt in a trial that included the DNA
report.

¶31 In McCallum, our supreme court set forth the following criteria that
must be met for newly discovered evidence to constitute a manifest injustice and
warrant the withdrawal of a plea:

First, the defendant must prove, by clear and convincing
evidence that: (1) the evidence was discovered after
conviction; (2) the defendant was not negligent in seeking
evidence; (3) the evidence is material to an issue in the case;
and (4) the evidence is not merely cumulative. If the
defendant proves these four criteria by clear and convincing
evidence, the circuit court must determine whether a
reasonable probability exists that a different result would be
reached in a trial.

Id., 208 Wis. 2d at 473. We assume without deciding that the first four criteria are
satisfied, and we instead focus on whether a reasonable probability exists that a
different result would be reached in a trial.

¶32 The State recognizes that McCallum instructs circuit courts to
“determine whether a reasonable probability exists that a different result would be
reached in a trial” after determining that the first four criteria were met and the
evidence at issue constitutes “newly discovered evidence.” Id. (emphasis added).
However, the State urges us to apply a different test, the one that is “employed in
every other context involving plea withdrawal motions,” namely, “whether it is
reasonably probable the defendant would have rejected the plea agreement and gone
to trial but for the alleged error.”

¶33 In our view, the State’s argument has merit. In several other
commonly litigated plea withdrawal contexts, courts must determine whether there

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is a reasonable probability that the defendant would not have pleaded guilty and
instead insisted on going to trial but for the alleged error. For example, when
claiming ineffective assistance of trial counsel as a basis for plea withdrawal, the
defendant must prove that it is reasonably probable that they would not have pleaded
guilty and would have gone to trial but for counsel’s deficient performance. State v.
Jeninga, 2019 WI App 14, ¶¶11-12, 386 Wis. 2d 336, 925 N.W.2d 574. Likewise,
when a defendant proves that the circuit court erroneously denied a suppression
motion, they are not allowed to withdraw their guilty plea if the State proves
harmless error, i.e., that it is not reasonably probable the defendant would have
rejected the plea agreement and gone to trial had the evidence been suppressed.
State v. Semrau, 2000 WI App 54, ¶¶21-22, 233 Wis. 2d 508, 608 N.W.2d 376.
Additionally, when a defendant seeks to withdraw a guilty plea on any constitutional
ground, he must prove that the constitutional violation “caused him to plead
guilty[.]” State v. Harris, 2004 WI 64, ¶11, 272 Wis. 2d 80, 680 N.W.2d 737.

¶34 To our knowledge, no controlling authority has ever explained why
the test is different when plea withdrawal is based on newly discovered evidence.10
Lack of explanation notwithstanding, we cannot adopt the State’s standard without
contradicting McCallum. McCallum dealt with recantation evidence, and it
concluded:

The correct legal standard when applying the “reasonable
probability of a different outcome” criteria is whether there
is a reasonable probability that a jury, looking at both the

10
In State v. Sturgeon, we held that a Brady violation can support a postsentencing motion
to withdraw a plea. State v. Sturgeon, 231 Wis. 2d 487, 605 N.W.2d 589 (Ct. App. 1999). Because
a Brady violation is a constitutional violation, the test we applied was whether the constitutional
violation “caused the defendant to plead guilty[.]” Sturgeon, 231 Wis. 2d at 496. Here, however,
we do not have a Brady violation, so the test we apply is the one announced in McCallum which
asks whether a reasonable probability exists that a jury would have reasonable doubt as to the
defendant’s guilt in a trial that included the newly discovered evidence. McCallum, 208 Wis. 2d
at 474.

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accusation and the recantation, would have a reasonable
doubt as to the defendant’s guilt. This standard is equally
applicable to motions to withdraw an Alford plea, motions
to withdraw a guilty plea, and motions for a new trial.

McCallum, 208 Wis. 2d at 474. In State v. Carnemolla, we concluded that this test
was not limited to situations where the newly discovered evidence is recantation
evidence. Id., 229 Wis. 2d 648, 661 n.4, 600 N.W.2d 236 (Ct. App. 1999) (“We see
no reason why the basic standards articulated in McCallum and other recantation
cases should not apply equally in non-recantation cases, where the new evidence
merely takes on a slightly different form.”). We see no avenue to adopt the State’s
test without contradicting these cases. Cook v. Cook, 208 Wis. 2d 166, 190, 560
N.W.2d 246 (1997). We are bound by McCallum’s pronouncement that after
determining that the evidence is “newly discovered evidence,” the test is whether a
jury would have a reasonable doubt as to the defendant’s guilt in a trial that included
the newly discovered evidence.

¶35 In this case, the circuit court applied the incorrect legal standard.
Instead of asking whether a jury would have reasonable doubt as to Shallcross’s
guilt in a trial that included the DNA report, the court asked whether Shallcross
would have insisted on going to trial had he known about the DNA report prior to
his plea. Because Shallcross’s motion for plea withdrawal was filed after he was
sentenced, withdrawal of his plea “rests in the circuit court’s discretion.”
McCallum, 208 Wis. 2d at 473. “An exercise of discretion based on an erroneous
application of the law is an erroneous exercise of discretion.” Id.

¶36 While it may be appropriate in some circumstances to stop here and
remand the cause to the circuit court to apply the proper legal standard, we need not
and do not do so in this case. Instead, we apply the proper legal standard and
conclude that there is no reasonable probability that a jury would have a reasonable

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doubt as to Shallcross’s guilt if it was presented with the DNA report. McCallum
does not compel remand.

¶37 In McCallum, the supreme court held that the circuit court applied the
wrong legal standard in determining whether there was a reasonable probability of
a different outcome at trial. Id. at 468, 474-75. McCallum requested that the
supreme court apply the proper legal standard and determine that he was entitled to
plea withdrawal, but the court declined, explaining:

Although we could apply the proper legal standard
to the facts of this case and determine whether McCallum
should be permitted to withdraw his Alford plea, Libke v.
State, 60 Wis. 2d 121, 129, 208 N.W.2d 331 (1973), our
independent review of the record indicates that the wiser
course, under these facts, is to remand this case to the circuit
court for a hearing to apply the proper legal standard.

McCallum, 208 Wis. 2d at 479 (emphasis added).

¶38 Thus, McCallum does not require that we remand the case after
concluding that the circuit court applied the wrong legal standard. In McCallum,
the court’s decision to remand the case to the circuit court was driven by the fact
that the credibility of the recantation was crucial to the application of the correct
legal standard. It explained that remand was the “wiser course” because
“[r]ecantation, by its very nature, calls into question the credibility of the witness or
witnesses ... and the circuit court judge is in a much better position” to resolve
whether the recantation would raise a reasonable doubt in the minds of a jury. Id.
“Because the circuit court is in a better position to determine whether a reasonable
probability exists that a reasonable jury looking at both the recantation and the
original accusation would have a reasonable doubt as to McCallum’s guilt, we defer
this determination to the circuit court.” Id. at 480.

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¶39 This case does not involve a credibility determination. Accordingly,
as contemplated by McCallum, we choose not to remand the matter and instead
apply the proper legal standard to this record and conclude that it is not reasonably
probable that a jury would have reasonable doubt as to Shallcross’s guilt in a trial
that included the DNA report. The record in this case demands such a conclusion,
and in fact, the DNA report’s failure to create a reasonable probability that a jury
would have reasonable doubt of Shallcross’s guilt is the reason why the circuit court
concluded that Shallcross would not have insisted on going to trial had he known
about the report prior to his plea.

¶40 We agree that the overwhelming evidence of Shallcross’s guilt
compels the conclusion that there is not a reasonable probability that a jury would
have a reasonable doubt as to Shallcross’s guilt if it were presented with more
inculpatory evidence (i.e., the DNA report). As explained above, we agree with the
circuit court’s conclusion that the DNA report is “more or less determinative” on
the issue of whether Shallcross was driving.

¶41 Moreover, Shallcross’s theory that an unidentified third person was
driving Gorectke’s vehicle is not supported by the DNA report and appears to rest
on a misinterpretation of a witness statement. In his motion, Shallcross contended
that a witness told police that immediately after the accident, he watched an
individual exit Gorectke’s vehicle and flee the scene on foot, leaving the driver’s
side door open; however, nothing in the record supports this contention. The
witness did not tell police that he watched an individual exit Gorectke’s vehicle
from the driver’s side door, just that he saw someone cross in front of Gorectke’s
vehicle after the crash and then leave the scene. The police report explains that a
police officer who had been following Gorectke’s vehicle immediately prior to the
accident was the first to respond to the accident scene. That officer stated that when

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No. 2023AP362

he approached Gorectke’s vehicle, the driver’s door was closed and he lifted the
driver’s side airbag to look inside and saw only Gorectke and Shallcross. The
officer did not see anyone in the driver’s seat.

¶42 Gorectke told police that, moments after the accident, Shallcross
crawled from the driver’s seat to the back seat and told Gorectke to tell police that
there was some unknown third person driving the vehicle. Gorectke stated that there
was not a third person driving the vehicle and that Shallcross was the driver at the
time of the accident. Two days after the accident, Shallcross confessed to police
that he was driving Gorectke’s vehicle. During his allocution, Shallcross admitted
to driving Gorectke’s vehicle while intoxicated and causing the accident.11

¶43 We agree with the circuit court that this evidence is overwhelming,
and there is no reasonable probability that a trial including the DNA report would
create reasonable doubt.

CONCLUSION

¶44 We conclude that Shallcross is not judicially estopped from arguing
that newly discovered evidence (i.e., the DNA report) supports the assertion that he
was not driving Gorectke’s vehicle and that this evidence justifies the withdrawal
of his guilty pleas. We also conclude that Shallcross’s Brady claim fails because
the DNA report is not exculpatory.

11
These inculpatory allocution statements would be admissible in a trial, and therefore,
are properly considered when determining whether a reasonable probability exists that a jury would
have reasonable doubt as to Shallcross’s guilt in a trial that included the DNA report. See State v.
Rejholec, 2025 WI App 36, ¶22, 417 Wis. 2d 27, 24 N.W.2d 146 (concluding that inculpatory
allocution statements made voluntarily after plea negotiations had ceased and before the defendant
moved to withdraw their plea are admissible at a subsequent trial).

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No. 2023AP362

¶45 We further conclude that the basic standards set forth in McCallum
apply to this case. In this case, that means that the circuit court must determine
whether there is a reasonable probability that a jury would have a reasonable doubt
as to Shallcross’s guilt in a trial that included the DNA report. Id., 208 Wis. 2d at
475.

¶46 Here, the circuit court applied the incorrect legal standard when it
focused its analysis on whether Shallcross would have insisted on going to trial had
he known about the DNA report prior to his plea, when the correct standard
considers whether a jury would have reasonable doubt as to Shallcross’s guilt in a
trial that included the DNA report.

¶47 Applying the proper legal standard to this record, we conclude that it
is not reasonably probable that, in a trial that included the DNA report, a jury would
have reasonable doubt as to Shallcross’s guilt. The record in this case compels such
a conclusion. Accordingly, we affirm the circuit court’s denial of Shallcross’s
motion to withdraw his pleas.

By the Court.—Order affirmed.

Recommended for publication in the official reports.

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