State v. Rebecca L. Pineda

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.
January 27, 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. 2023AP1883-CR Cir. Ct. No. 2018CF1119

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-APPELLANT,

V.

REBECCA L. PINEDA,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Milwaukee County:
MILTON L. CHILDS, SR., Judge. Affirmed.

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

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. 2023AP1883-CR

¶1 PER CURIAM. The State of Wisconsin appeals from the order
granting defendant Rebecca Pineda’s motion for postconviction relief, vacating
her conviction for felony theft and unauthorized use of personal identifying
information, and allowing her to withdraw her no-contest pleas. The State argues
that the circuit court erred when it granted postconviction relief to Pineda based on
undisclosed impeachment information because (1) there are no Brady1 due process
rights to discovery when resolving charges with a plea; and (2) the information
was not material. We affirm the court’s holding that manifest injustice occurred
because material impeachment information was not disclosed in violation of the
discovery statute, WIS. STAT. § 971.23 (2023-24).2 Accordingly, we affirm the
order for plea withdrawal.

BACKGROUND

¶2 The charges against Pineda arose from her employment as an office
manager at a Milwaukee restaurant, where she was hired in May 2016. In
December 2016, the restaurant owner, Michael,3 discovered financial
improprieties arising from Pineda’s duties and actions; Pineda was terminated.
Michael then received an email purportedly from an attorney threatening to take
the restaurant to court; however, when the attorney was contacted, he denied
writing the email or representing Pineda.

1
Brady v. Maryland, 373 U.S. 83 (1963).
2
All references to the Wisconsin Statutes are to the 2023-24 version.
3
We employ a pseudonym in accordance with WIS. STAT. RULE 809.86.

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No. 2023AP1883-CR

¶3 The complaint alleged that Pineda embezzled funds in five ways:
(1) stealing currency that should have been deposited in the bank; (2) making
unauthorized purchases on five credit cards stolen from the restaurant’s safe;
(3) writing unauthorized checks to pay her own tax and unemployment
compensation liabilities; (4) inflating her paychecks by increasing her wages
without her employer’s consent; and (5) eliminating payroll taxes from her own
paychecks. In March 2018, Pineda was charged with (1) theft by an employee in
an amount exceeding $10,000, with the habitual criminality repeater penalty
enhancer; (2) fraudulent use of a credit card between $5,000 and $10,000, with the
habitual criminality repeater penalty enhancer; and (3) unauthorized use of
personal identifying information to obtain anything of value or benefit, as a party
to a crime, with the habitual criminality repeater penalty enhancer.

¶4 The record reflects that in June 2018, the trial court set a jury trial
date for December 10, 2018.4 Pineda’s counsel requested additional time to
review more than 10,000 pages of discovery. In September, Pineda requested the
trial date be adjourned to accommodate witness investigation, discovery review,
and a missing transcript, which resulted in a new trial date in January 2019.
However, in November 2018, defense counsel learned that a member of the trial
court’s family had donated to Michael’s prior aldermanic campaign fund, which
had resulted in the court recusing itself from presiding over an earlier case where
Michael was the defendant. The court explained that its relationship with Michael
was not a social relationship, but because the court’s judicial campaign and
Michael’s aldermanic campaign occurred at similar times and they were both at

4
The Honorable Michelle Ackerman Havas presided over the initial proceedings against
Pineda. We refer to Judge Havas as the trial court.

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No. 2023AP1883-CR

the same events, the trial court recused itself and the case was moved to the circuit
court.5

¶5 A trial date was set for May 2019; however, in April, the trial was
adjourned until September to accommodate evidentiary and personal issues. In
September 2019, Pineda informed the court she elected to resolve the case with a
plea agreement on the scheduled trial date, then five days away.

¶6 During the plea hearing, the State recited the plea offer as Pineda
paying $14,000 in restitution and pleading guilty to counts one and three, and the
State would dismiss and read in count two. The State would also recommend
concurrent sentences with specific term lengths. Pineda proceeded to offer no
contest pleas, which although not originally planned, were acceptable to the State.

¶7 After the circuit court conducted a thorough colloquy with Pineda,
the court accepted her no contest pleas and entered a judgment of conviction. In
February 2020, after ascertaining that the initial $14,000 restitution had been
received, the court sentenced Pineda to concurrent sentences: for count one, a
7-year sentence divided as 2 years of initial confinement and 5 years of extended
supervision; and for count three, a 4.5-year sentence divided as 1.5 years of initial
confinement and 3 years of extended supervision. An additional order of
$13,997.39 in restitution was also entered.

¶8 By new counsel, Pineda moved for postconviction relief by first
moving for release pending appeal in December 2020, which was granted by the

5
The Honorable David A. Hansher presided over Pineda’s plea and sentencing. We
refer to Judge Hansher as the circuit court.

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No. 2023AP1883-CR

postconviction court in April 2021, and then followed with a postconviction
motion in August 2021.6

¶9 Pineda argued that after sentencing, she learned that the State did not
disclose a connection and a conflict of interest between the lead investigator on the
case, Milwaukee Police Department (MPD) Detective Dale Bormann, and
Michael, the restaurant owner. Pineda asserted that when Michael ran for
Milwaukee alderperson, Detective Bormann served as a trustee for the Milwaukee
Police Association (MPA), which contributed to Michael’s campaign. Detective
Bormann appeared with Michael in certain campaign materials. He remained an
MPA trustee when he was assigned to investigate this matter in January 2017. In
April 2017, the MPA awarded Michael’s restaurant a business appreciation award.

¶10 Pineda argued that Detective Bormann did not disclose any potential
conflict of interest throughout these proceedings, despite serving as the State’s
witness in the preliminary hearing, and being present at nearly every hearing
throughout the matter. Although Pineda informed the State about the conflict in
March and June 2020, it took no action in response. Pineda contrasted this
inaction to when the trial court recused itself from Pineda’s case when it learned
that a family member had contributed to Michael’s campaign for alderperson.

¶11 Pineda alleged that Detective Bormann failed to investigate
Michael’s claims and instead took his complaints at face value. Michael’s claims
included that personal loans were not given to employees, Pineda was stealing
cash from the restaurant that she should have deposited in the bank, Pineda was

6
The Honorable Milton L. Childs, Sr. presided over Pineda’s postconviction
proceedings; we refer to Judge Childs as the postconviction court.

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No. 2023AP1883-CR

not authorized to use a business credit card, and Pineda changed her payroll
withholding to inflate her wages. Pineda argued that the detective did not
investigate evidence that would dispute each claim, specifically: that employees
received gift cards for the holidays, correlating to the allegedly unauthorized credit
card transactions; messages from Michael to Pineda directing her to purchase gifts
for employees; the cash deposits were reduced by payouts to employees, as
reflected in the restaurant’s accounting system showing bill payment by cash and
check; Michael’s role approving payroll each week; and Pineda’s tax status as an
independent contractor, which meant the restaurant would not have paid payroll
taxes on her wages and she was paid with a 1099 tax form. Pineda also alleges
that the detective did not investigate allegations of drugs, prostitution, and cash
handling during the restaurant’s Friday fish fry. Pineda argued that a forensic
accountant would need to examine the records to determine what happened.

¶12 In seeking postconviction relief, Pineda asserted she would suffer
manifest injustice if she were not allowed to withdraw her plea, arguing (1) the
State failed to disclose material impeachment information pursuant to Brady and
WIS. STAT. § 971.23(1) resulting in a due process violation; and (2) ineffective
assistance of counsel for failing to retain a forensic accountant and for stipulating
to the facts in the complaint. Pineda argued that if she had known about the
connection between Michael and Detective Bormann, she would not have entered
no contest pleas and would have gone to trial.

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No. 2023AP1883-CR

¶13 After multiple days of a continued evidentiary hearing, the
postconviction court issued a decision in August 2023.7 The court determined that
although Pineda failed to show deficient performance by counsel, which meant her
ineffective assistance of counsel claims failed, she did prove the State deprived her
of due process by withholding discovery. The court found that, based on State v.
Harris, 2004 WI 64, 272 Wis. 2d 80, 680 N.W.2d 737, Brady, and WIS. STAT.
§ 971.23(1), the State failed to disclose material impeachment information arising
out of the connection between Michael and Detective Bormann.8 The court
granted the postconviction motion, reversed the judgment of conviction, vacated
her sentence, and granted her request to withdraw her pleas. The State now
appeals. We will discuss additional facts in the postconviction court’s findings
and reasoning below.

DISCUSSION

¶14 The State argues that the postconviction court’s decision to grant
plea withdrawal to Pineda was an erroneous exercise of discretion. The court’s
decision to permit plea withdrawal is ordinarily a matter of discretion. State v.
Cain, 2012 WI 68, ¶20, 342 Wis. 2d 1, 816 N.W.2d 177. “We will uphold a
discretionary determination by the [circuit] court as long as the court considered

7
The postconviction court held an evidentiary hearing on Pineda’s claims over multiple
days in 2022 and 2023. The court heard testimony from Pineda’s original counsel, who served
until Pineda entered her plea; her second attorney, who served as her counsel at sentencing;
Detective Bormann; Michael; a forensic accounting expert; and Pineda herself.
8
We recite from the postconviction court’s finding that Pineda “should have been made
aware of the relationship and extent of the relationship between [Detective] Bormann and
[Michael]. She should have been made aware that [Detective] Bormann was on the MPA board,
when the association made a contribution … to [Michael’s] campaign.” For ease of reading, we
will refer to the court’s finding that the State violated its discovery disclosure obligations as the
connection between Michael and Detective Bormann.

7
No. 2023AP1883-CR

the facts of the record under the proper legal standard and reasoned its way to a
rational conclusion.” State v. Terrill, 2001 WI App 70, ¶8, 242 Wis. 2d 415, 625
N.W.2d 353.

¶15 “A defendant is entitled to withdraw a no contest plea after being
sentenced upon a showing of manifest injustice by clear and convincing
evidence.” State v. Denk, 2008 WI 130, ¶31, 315 Wis. 2d 5, 758 N.W.2d 775.
One way a defendant may show manifest injustice is to show the “defendant was
deprived of a right guaranteed by the constitution, statute, or rule, and that
deprivation induced the defendant to plead guilty.” Harris, 272 Wis. 2d 80, ¶39.

¶16 The State makes two arguments. First, the State argues that
nondisclosure of a connection between Michael and Detective Bormann did not
violate Brady because due process under Brady is generally a trial right that a
defendant waives when a plea is entered. Second, the State asserts that it did not
violate WIS. STAT. § 971.23(1) because the connection between Michael and
Detective Bormann was not material.

I. Brady and plea withdrawal

¶17 A due process violation occurs when the State does not disclose
evidence favorable to the accused upon request, “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. However, “the Constitution does not require
the [State] to disclose material impeachment evidence prior to entering a plea
agreement with a criminal defendant.” United States v. Ruiz, 536 U.S. 622, 633
(2002). “The constitutional question concerns a … criminal defendant’s waiver of
the right to receive from prosecutors exculpatory impeachment material—a right
that the Constitution provides as part of its basic ‘fair trial’ guarantee.” Id. at 628.

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No. 2023AP1883-CR

¶18 In Harris, our supreme court concluded that Ruiz bars plea
withdrawal based on a violation of constitutional due process arising from
undisclosed, material impeachment information. Harris, 272 Wis. 2d 80, ¶¶22-23.
Accordingly, we agree with the State and conclude that Pineda is not entitled to
plea withdrawal on the basis of a Brady issue.

¶19 However, we reject the State’s characterization that the
postconviction court’s decision erred by relying on Brady for its findings. The
record reflects that the court relied upon Harris, which analyzed plea withdrawal
to prevent a manifest injustice due to nondisclosure of material impeachment
information in the context of Brady, Ruiz, constitutional rights, and the discovery
statute, WIS. STAT. § 971.23. Harris, 272 Wis. 2d 80, ¶¶23, 39. Our examination
of the court’s decision shows that its analysis considered the proper standard of
law.

¶20 We turn to the postconviction court’s decision, in which the court
acknowledged that Brady did not apply to the plea process. However, the court
analyzed Pineda’s claims under Harris, which concluded that WIS. STAT.
§ 971.23(1) is broader than Brady regarding the timing of disclosures. See Harris,
272 Wis. 2d 80, ¶37 (holding that applicable discovery “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”).

¶21 The postconviction court found that the September 2019 trial date
was set in April 2019 and that the circuit court was only informed of Pineda’s
decision to enter a plea five days before that trial date. The postconviction court
concluded that under the facts and circumstances of this case, Pineda was in a trial

9
No. 2023AP1883-CR

posture, and thus was preparing for trial, for four to five months, during which the
State failed to disclose the relationship between Detective Bormann and Michael,
despite its obligation under the discovery statute. Further, the court found that the
record from the plea hearing was clear that Pineda was reluctant to enter her pleas,
although she ultimately did.9 The court’s findings were not clearly erroneous. See
State v. Jenkins, 2007 WI 96, ¶33, 303 Wis. 2d 157, 736 N.W.2d 24 (explaining
that “we apply a deferential, clearly erroneous standard to the court’s findings of
evidentiary or historical fact” as well as credibility determinations).

¶22 We will discuss the application of WIS. STAT. § 971.23 to Pineda’s
postconviction motion below; nonetheless, we are confident that the
postconviction court’s decision did not rely improperly on Brady, and we
conclude that the State’s first argument fails.

II. Statutory discovery disclosures

¶23 Wisconsin’s discovery statute demands “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.”
Harris, 272 Wis. 2d 80, ¶27. WISCONSIN STAT. § 971.23(1) sets forth the State’s
discovery obligation, stating: “[u]pon demand, the district attorney shall, within a
reasonable time before trial, disclose to the defendant … and permit the

9
Our examination of the record supports the postconviction court’s findings about the
plea hearing. When we review “the circuit court’s decision to accept a plea … we may rely upon
the entire record.” State v. Nash, 2020 WI 85, ¶28, 394 Wis. 2d 238, 951 N.W.2d 404. The
record reflects that the plea hearing was adjourned for a short time when Pineda was unsure about
entering a plea and she was given time to discuss her options with counsel. Additionally, the
State was unaware before the hearing of Pineda’s decision to enter no contest pleas. The circuit
court also clarified to Pineda that a no contest plea would only be to preclude possible civil
ramifications if the restaurant sued her.

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No. 2023AP1883-CR

defendant … to inspect and copy or photograph all of the following materials and
information, if it is within the possession, custody or control of the [S]tate,” with a
list of nine types of information ending with a requirement for “[a]ny exculpatory
evidence.” Sec. 971.23(1)(h).

¶24 The State argues that statutory discovery obligations extend only to
material information and the connection between Michael and Detective Bormann
was not material because it did not bear on Pineda’s guilt or innocence. We
disagree. The credibility of a witness “may well be determinative of guilt or
innocence,” depending on a jury or court’s “estimate of the truthfulness and
reliability of a given witness[.]” Napue v. Illinois, 360 U.S. 264, 269 (1959).

¶25 In the context of discovery disclosure obligations, “[t]he 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.”
United States v. Bagley, 473 U.S. 667, 682 (1985). Similar to a prejudice inquiry,
“[a] ‘reasonable probability’ is a probability sufficient to undermine confidence in
the outcome.” Id. Impeachment evidence is material when it “could be used to
challenge the credibility of witnesses whose credibility would have been
determinative” of a defendant’s guilt. Harris, 272 Wis. 2d 80, ¶30.

¶26 Pineda argues that the undisclosed evidence was material, and that
the basic facts were undisputed: Detective Bormann was the lead investigator, he
served as a trustee of the MPA, the MPA contributed to Michael’s aldermanic
campaign, there are photographs of Michael and Detective Bormann at a campaign
event, and the MPA gave Michael a business award during the time Detective
Bormann was investigating Michael’s complaints.

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No. 2023AP1883-CR

¶27 The State argues that Detective Bormann testified at the evidentiary
hearing that he did not recall meeting Michael and he did not draw any connection
among Michael, the MPA, and himself. Therefore, the State argues that Detective
Bormann’s investigation was not influenced by the alleged connection, he had no
reason to disclose it or recuse himself, and the State did not violate its discovery
obligations. In contrast, Pineda asserts that the photographic evidence of
Detective Bormann with Michael—a police endorsement of a political
campaign—alone creates the appearance of a conflict of interest, bias, or
impropriety. She contrasts the detective’s decision not to recuse himself or
disclose the connection with the trial court’s decision to recuse from the case
because a member of the court’s family donated to that same campaign, even as
the court did not consider it a personal or social relationship.

¶28 Pineda argues that the impeachment information would further
support Pineda’s defense that the detective’s investigation itself was insufficient,
relying on Michael’s complaints, instead of investigating the restaurant’s
processes in practice or performing any accounting verifying Michael’s claimed
losses. The State acknowledges the connection information would provide a
limited ability to impeach Detective Bormann, but argues that it would be
meaningless in the broader context of the prosecution, which would rely on
Michael’s credible testimony. The State asserts that even if Detective Bormann
took Michael at his word, the question of Pineda’s guilt could not have been
established by the detective merely repeating Michael’s statements because that
would be hearsay. The State contends that the connection evidence would not be
material because the challenge would come down to Pineda’s credibility versus
Michael’s credibility, not Pineda’s credibility versus Detective Bormann’s
credibility. However, the State ignores that the impeachment information would

12
No. 2023AP1883-CR

undermine both Michael and the detective’s credibility, as well as the investigation
itself.

¶29 The State argues that it is beyond belief that any defendant would
have gone to trial instead of pursuing a plea agreement on the basis of such
tenuous and tangential impeachment evidence as presented here. Pineda asserts
that she would have gone to trial if the State properly disclosed this connection
because the case hinged on Michael and Detective Bormann’s credibility. She
contends that with material impeachment information to raise an inference that the
investigation was compromised, she would have had a stronger defense. She also
asserts that with the propriety of the investigation at issue, trial counsel would
have been motivated to pursue forensic accounting, which would have undermined
Michael’s claims.10

¶30 We conclude that the postconviction court’s decision to grant plea
withdrawal to Pineda was a reasonable exercise of discretion. The court
considered the relevant facts under the proper legal standard, and reached a
rational conclusion that the State’s failure to disclose the connection between
Michael and Detective Bormann violated WIS. STAT. § 971.23(1). See Terrill, 242
Wis. 2d 415, ¶8. The evidence was material in that if it had been disclosed there
was “a reasonable probability that … the result of the proceeding would have been
different.” Bagley, 473 U.S. at 682 (citation omitted). The evidence constituted
impeachment information that “could be used to challenge the credibility of

10
During postconviction proceedings, Pineda hired a forensics accountant who analyzed
the records of the alleged thefts. The accountant testified at the postconviction evidentiary
hearing that there was no documentary evidence that Pineda stole cash, took funds, or used credit
cards without authorization.

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No. 2023AP1883-CR

witnesses whose credibility would have been determinative of [Pineda’s] guilt.”
See Harris, 272 Wis. 2d 80, ¶30. Therefore, we conclude that Pineda has shown
by clear and convincing evidence that it would be manifest injustice if she were
not allowed to withdraw her pleas. See Denk, 315 Wis. 2d 5, ¶31.

CONCLUSION

¶31 For the reasons stated above, we reject the State’s arguments and we
affirm the court’s order granting plea withdrawal.

By the Court.—Order affirmed.

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

14