State v. Altonio Laroy Chaney, 2011AP207-CR, District 1, 10/25/11
court of appeals decision (not recommended for publication); for Chaney: Angela Conrad Kachelski; case activity; prior appeal: 2008AP395-CR
Chaney’s argument that an eyewitness had recanted his version of having seen Chaney sexually assault the victim didn’t satisfy the new factor test for sentence modification: the sentencing court didn’t focus on the claim that Chaney, whose guilt was premised on ptac liability, had himself assaulted the victim; relatedly, Chaney can’t show by clear and convincing evidence that the sentencing court relied on the since-recanted version, ¶¶7-8. (“[T]he circuit court based its sentence not on Gurley’s claim that Chaney personally sexually assaulted Regine, but because Chaney ‘had the ability to change the course’ of the multiple sexual assaults by others, and ‘had the ability to stop [the assault by others,] which he didn’t.'”)
Standard of review for new factor claim recited, ¶5, quoting State v. Harbor, 2011 WI 28, ¶¶36–38, 333 Wis. 2d 53, 797 N.W.2d 828.
The court adduces a third reason for rejecting relief: “recantation must be corroborated by other newly discovered evidence,” ¶¶6, 9, quoting State v. McCallum, 208 Wis. 2d 463, 473–474, 561 N.W.2d 707 (1997). McCallum announces a test for plea-withdrawal based on newly discovered evidence in the form of witness-recantation, as the court here is surely aware. Although both claims involve recantation, at the same time the policy goals underlying the distinct forms of relief sought are distinct – it’s certainly arguable that the tests should remain distinct as well. For example, the McCallum recantation test takes into account “the integrity of the initial fact finding process, the finality of judgments, judicial economy, and prejudice to the state caused by delay. Accordingly, exacting standards are applied when a defendant moves for a new trial,” 208 Wis. 2d at 481. A fair argument might be advanced that these considerations don’t apply at all (certainly not to the same extent) in the context of sentence review.
