People v. Schneider

Opinion by

Judge MARQUEZ.

The People appeal the trial court’s order granting the request of defendant, Duane Fred Schneider, to withdraw his guilty plea based on newly discovered evidence. We affirm. •

In 1993, defendant was charged with four counts of aggravated incest involving his then thirteen-year-old daughter. Pursuant to a plea agreement, defendant entered a guilty plea in 1994 to sexual assault on a child in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

In 1996, defendant filed a Crim. P. 35(c) motion to withdraw his guilty plea. The motion was based in part on the “newly discovered” evidence that the victim had recanted.

During a two-day hearing on the motion, the victim, then eighteen, testified that she had lied and that the defendant had never sexually abused her. Following the hearing, the trial court issued a written order granting defendant permission to withdraw his Alford plea. This appeal followed.

I.

The People contend that the record and the law do not support the trial court’s setting aside of the conviction. They assert that, because defendant entered a voluntary, knowing, and intelligent guilty plea, he waived his right to withdraw his plea after sentencing, even though the victim later recanted. They also assert that the trial court misapplied a newly discovered evidence standard in the Crim. P. 35(c) motion. In contrast, defendant contends that a request to withdraw an Alford plea should be permitted, even after sentencing, and that a victim’s recantation constitutes newly discovered evidence sufficient to permit the plea tó be withdrawn. We conclude that a defendant should be permitted, even after sentencing, to seek withdrawal of an Alford plea based on newly discovered evidence.

Crim. P. 35(c)(2)(V) provides that an application for conviction review must allege, inter alia:

That there exists evidence of material facts, not theretofore presented and heard, which, by the exercise of reasonable diligence, could not have been known to or learned by the defendant or his attorney prior to the submission of the issues to the court or jury, and which requires vacation of the conviction or sentence in the interest of justice.

In essence, an Alford plea permits a defendant to assert innocence as to one or more elements of the crime. Nevertheless, because sufficient evidence exists for a conviction, the defendant consents to the imposition of the conviction and penalty. People v. Birdsong, 958 P.2d 1124 (Colo.1998).

A division of this court recently concluded in People v. Tomey, 969 P.2d 785 (Colo.App.1998), that a defendant who enters an Alford plea of guilty does not waive the right to seek post-conviction review, at least when the request is based on newly discovered evidence.

Citing People v. Gutierrez, 622 P.2d 547 (Colo.1981), the division in Tomey observed that to succeed on a motion for a new trial based on newly discovered evidence, the defendant must show that the evidence was discovered after the trial; defendant and defense counsel exercised diligence to discover all possible evidence favorable to the defendant before and during trial; the newly discovered evidence is material to the issues involved and not merely cumulative or impeaching; and such evidence would probably bring about an acquittal verdict if presented at another trial.

The determination of the character of the new evidence in regard to its likelihood of producing an acquittal in a new trial should be premised on whether the new evidence, when considered with all the other evidence presented at a new trial, is such that a reasonable jury would probably conclude that there existed a reasonable doubt as to defendant’s guilt and thereby bring about an acquittal verdict. People v. Tomey, supra.

In the Crim. P. 35(c) proceedings in this case, counsel disagreed as to the proper criteria to be applied but did not provide the trial court any legal authority, other than the supreme court’s decision in People v. Gutierrez, supra.

The trial court determined that it would apply the Gutierrez test to defendant’s request to withdraw his plea. It concluded that: the recantation evidence was discovered after entry of his guilty plea; defendant and his counsel had exercised diligence to discover all possible evidence favorable to defendant prior to the plea; the evidence was material; there was no obvious flaw in either story; and the recantation would probably cause a reasonable jury to have reasonable doubt about the defendant’s guilt.

On appeal, the parties have cited no legal authority other than Gutierrez. Nor does either party advocate the adoption of any other standard. While Gutierrez involved a motion for new trial, not a request to withdraw an Alford plea, and the “newly discovered” evidence in Gutierrez was not a victim’s recantation, we nevertheless agree that GuMeTrez is the applicable standard.

In People v. Tomey, supra, as here, defendant, after entering an Alford plea, sought post-conviction relief pursuant to Crim. P. 35(c). Defendant alleged that while in jail after sentencing, he was informed by another inmate that the victim had told the inmate she had lied about being attacked by defendant. The division held defendant was entitled to file a motion for post-conviction relief.

In People v. Estep, 799 P.2d 405 (Colo.App.1990), defendant appealed the denial of his Crim. P. 35(c) motion seeking a new trial based on the confession of another to the crime for which defendant had been convicted by a jury. The trial court denied defendant’s motion on the basis that defendant was not credible. Citing People v. Gutierrez, supra, a division of this court held that the determination as to whether the new evidence would probably produce an acquittal in a new trial is not to be based on the court’s experience in evaluating the credibility of witnesses. Rather, that determination should be premised on whether the new evidence, as developed in a trial and considered with all the other evidence, is such that a reasonable jury would probably conclude that there existed a reasonable doubt as to defendant’s guilt and thereby bring about an acquittal verdict.

While courts in other jurisdictions have addressed the question of recantation, virtually all cases have involved recantation following a trial. See, e.g., United States v. Leibowitz, 919 F.2d 482 (7th Cir.1990).

Very few cases have addressed the issue in the context of an Alford plea. See State v. Miller, 253 Mont. 395, 833 P.2d 1040 (1992)(applying abuse of discretion standard and ruling that a new trial is required only when the court is satisfied that the recantation is true); People v. De Jesus, 606 N.Y.S.2d 255, 199 A.D.2d 529 (N.Y.App.Div.1993)(disagreeing with hearing court that testimony regarding child victim’s recantation was unworthy of belief, court held interest of justice would be best served by permitting the defendant to withdraw his plea and proceed to trial).

In State v. McCallum, 208 Wis.2d 463, 561 N.W.2d 707 (1997), the court applied a test similar to Gutierrez. Although Wisconsin employs an additional requirement of corroboration, the court held that the correct legal standard includes whether there is a reasonable probability that a jury, looking at both the accusation and recantation, would have a reasonable doubt as to the defendant’s guilt.

Here, the only difference between People v. Tomey, supra, and the present case is that the recantation is by the victim of an alleged sexual assault. In our view, this does not warrant a departure from Tomey and Gutierrez. Accordingly, we conclude that the trial court properly applied Gutierrez.

II.

We also reject the People’s contention that the record does not support the trial court’s ruling.

Here, the trial court addressed each of the Gutierrez elements. The evidence of recantation was discovered in 1996 after defendant had entered his Alford plea. The court found, with record support, that the victim first contacted her mother and the court claiming that she had lied regarding her sexual allegations against her father. At the hearing in 1997, she testified that she had lied about her earlier allegation.

The court specifically found, with record support, that no pressure was placed on the victim by the defendant to compel her to come forward and recant. At the hearing, she was specifically asked, “[A]re you saying that you lied now because you missed your dad?” She responded, “No I lied — I lied then, I lied about — I mean I just lied.” She testified that defendant had not sexually abused her and that no one had asked her to come and say that. When asked if defendant had asked her to tell the court she had lied, she answered, “No I haven’t talked to him.”

The court also noted there had not been any serious argument that defendant and his counsel failed to exercise diligence to discover all possible evidence favorable to the defendant prior to the plea. This was supported by a finding that investigators prior to trial had interviewed the victim and that she was still alleging the assaults had occurred.

In addition, the court found there was no doubt that the daughter’s recantation evidence was material to the issues involved. In this regard, the record of the plea hearing indicates that the factual basis asserted was that defendant had touched the victim’s breasts. That record does not indicate the source of that information.

Finally, the court concluded that the recantation should be sufficient to cause a reasonable jury to conclude that there exists a reasonable doubt as to defendant’s guilt. In support, the court noted that defendant had not previously admitted his guilt and that the victim had not previously testified under oath at trial. Thus, according to the court, an acquittal would depend on the jury’s determination of the victim’s credibility.

Thus, the record adequately supports the trial court’s findings and conclusions. See People v. Tomey, supra; People v. Estep, supra.

Order affirmed.

Judge TAUBMAN concurs. Judge BRIGGS dissents.