State v. John R. Maloney

Annotate this Case

Download PDF

2006 WI 15 SUPREME COURT CASE NO.: OF WISCONSIN 2003AP2180 COMPLETE TITLE: State of Wisconsin, Plaintiff-Respondent, v. John R. Maloney, Defendant-Appellant-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS 2004 WI App 141 Reported at: 275 Wis. 2d 557, 685 N.W.2d 620 (Ct. App. 2004-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: April 12, 2005 and November 9, 2005 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Brown Peter Naze June 10, 2005 and February 10, 2006 JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the defendant-appellant-petitioner there were briefs by Lew A. Wasserman and Kies & Wasserman, Milwaukee, and oral argument by Lew A. Wasserman. For the plaintiff-respondent the cause was argued by Daniel J. O Brien, assistant attorney general, with whom on the briefs was Peggy A. Lautenschlager, attorney general. 2006 WI 15 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2003AP2180 (L.C. No. 98CF693) STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Respondent, FILED v. FEB 10, 2006 John R. Maloney, Defendant-Appellant-Petitioner. Cornelia G. Clark Clerk of Supreme Court REVIEW of a decision of the Court of Appeals. ¶1 LOUIS B. BUTLER, JR., J. Affirmed. John Maloney ("Maloney"), the petitioner, originally sought review of a decision by the court of appeals affirming a circuit court order denying his motion for postconviction relief.1 In his postconviction appeal and initial review before this court, he contended that he was afforded ineffective assistance of trial counsel. Maloney's 1 claim of ineffective assistance of We rejected counsel, but State v. Maloney, 2004 WI App 141, 275 Wis. 2d 557, 685 N.W.2d 620 (affirming an order of the circuit court for Brown County, Peter J. Naze, Judge). No. retained jurisdiction to determine "[w]hether this 2003AP2180 court has authority to remand to the circuit court for a motion for postconviction relief based upon the interest of justice," and, "[i]f so, whether this court should act upon that authority and remand" this case for that purpose. State v. Maloney, 2005 WI 74, ¶¶2-3, 45-46, 281 Wis. 2d 595, 398 N.W.2d 583 ("Maloney I"). ¶2 We conclude that this court has the authority to use its power of discretionary reversal to remand to the circuit court for a motion for postconviction relief in the interest of justice, notwithstanding the fact that the argument was raised by this court sua sponte. However, because Maloney's brief and oral argument failed to allege sufficient material facts, and no such facts currently exist within the record, to warrant a remand for an evidentiary hearing in the interest of justice, we conclude that Maloney is not entitled to relief on the basis of this record. I ¶3 We discussed the facts of Maloney's case in Maloney I, 281 Wis. 2d 595, ¶¶4-13. We summarize only the facts that are relevant to this review. ¶4 John Maloney, the defendant, ("Sandra") were married in 1978. and Sandra's body was found on her living room couch on February 11, 1998. Bay combination medical of examiner, blunt force Maloney In 1997, John moved out of the family's home and filed for divorce. Green Sandra her trauma strangulation, and suffocation. death to the According to the was caused back of by her the head, The couch, along with Sandra's 2 No. body, had been set on fire. Bay Fire Department and 2003AP2180 Preliminary reports from the Green the Brown County Arson Task Force labeled the fire an accident, although the fire was ultimately deemed arson. was a homicide. ¶5 The investigators concluded that Sandra's death John Maloney became a suspect. Because Maloney was a police officer with the Green Bay Police Department, Brown County District Attorney John P. Zakowski recused himself from the investigation. then-District Biskupic, Attorney then-District for Winnebago Attorney for Joseph Paulus, County, and Outagamie Vincent County, were appointed as Special Prosecutors. ¶6 Throughout the course Hellenbrand, who was dating death, cooperated with of Maloney the the conversations with Maloney. at investigation, the time authorities of by Tracy Sandra's recording Conversations that took place in Las Vegas between Maloney and Hellenbrand were videotaped, under supervision of Wisconsin authorities, with Hellenbrand's consent and cooperation. These recordings contained inculpatory statements by Maloney regarding the death of Sandra. ¶7 Based on the videotaped conversations in Las Vegas, Maloney was arrested and charged with first-degree intentional homicide, arson, and mutilation of a corpse, all in connection with Sandra's homicide. ¶8 of the Vegas At trial, the State relied heavily on the recordings conversations to demonstrate between Maloney Maloney's 3 guilt. and Hellenbrand Maloney in attempted Las to No. challenge the admissibility of the videotapes 2003AP2180 but was unsuccessful. ¶9 Maloney maintained his innocence throughout the trial and asserted that Hellenbrand was responsible for the murder. The jury convicted Maloney of all three charges. Maloney appealed, renewing his challenge to the admissibility of the videotapes. The court of appeals affirmed. State v. Maloney, No. 1999AP3069-CR, unpublished slip op. (Wis. Ct. App. Sept. 6, 2000). ¶10 under Maloney then filed a motion for postconviction relief Wis. Stat. § 974.06 (1997-98).2 In his postconviction motion, Maloney claimed he was denied effective assistance of counsel. The circuit court denied Maloney's motion. of appeals affirmed. State v. Maloney, 2004 WI App 141, 275 Wis. 2d 557, 685 N.W.2d 620. ¶11 The court We accepted review. Shortly before we heard oral arguments for Maloney I, the Wisconsin Department of Justice informed this court that the CBS news program "48 Hours" devoted a segment of its March 26, 2005, show to the investigation and prosecution of Maloney by Joseph Paulus, and attached a transcript of the program. Maloney did not object to the court receiving the transcripts. The transcripts of this television show discussed that in 2004, Joseph Paulus, the former District Attorney of Winnebago County 2 All references to the Wisconsin Statutes are to the 199798 version unless otherwise noted. 4 No. 2003AP2180 and Special Prosecutor in Maloney's case, had been convicted of misconduct while in office.3 ¶12 Maloney In Maloney I, 281 Wis. 2d 595, ¶45, we concluded that had failed to carry the ineffective assistance of counsel. burden of demonstrating Despite this conclusion, two questions were raised sua sponte by this court following oral argument: 1) "[w]hether this court has authority to remand to the circuit court for a motion for post-conviction relief based upon the interest of justice" even though no party had raised or made this argument; and 2) "whether this court should act upon that authority and remand" for that purpose. Id., ¶¶3, 46. retained jurisdiction to address these two questions. We We now affirm the decision of the court of appeals. II ¶13 We begin by examining whether this court has the authority to remand the case to the trial court for a motion for postconviction relief based upon the interest of justice, and, if so, whether the court's authority is adversely affected because this court, not the parties, raised the argument sua sponte. ¶14 There is no question that this court has both inherent power and explicit statutory authority to reverse a conviction in the interest of justice "if it appears from the record that 3 According to the written Factual Basis For Plea, Paulus accepted bribes totaling more than $48,000 over the course of two years, from June 1998 to June 2000, in connection with 22 cases that he prosecuted as district attorney. See United States v. Paulus, 331 F. Supp. 2d 727, 729 (E.D. Wis. 2004). 5 No. 2003AP2180 the real controversy has not been fully tried," or if there has been a miscarriage of justice.4 Wis. Stat. § 751.06.5 See also 4 This court has concluded that the two prongs are distinctive. Vollmer v. Luety, 156 Wis. 2d 1, 16, 456 N.W.2d 797 (1990). "[A] new trial may be ordered on either of two grounds: (1) whenever the real controversy has not been fully tried or (2) whenever it is probable that justice has for any reason been miscarried." Id. (citation omitted). Under the first prong of the "interest of justice" analysis, the real controversy has not been tried if the jury was not given the opportunity to hear and examine evidence that bears on a significant issue in the case, even if this occurred because the evidence or testimony did not exist at the time of trial. State v. Hicks, 202 Wis. 2d 150, 160-61, 549 N.W.2d 435 (1996) (citations omitted). In order to grant a discretionary reversal because "it is probable that justice has for any reason miscarried," the second prong, there must be a substantial probability of a different result on retrial. State v. Schumacher, 144 Wis. 2d 388, 401, 424 N.W.2d 672 (1988) (citing State v. Wyss, 124 Wis. 2d 681, 741, 370 N.W.2d 745 (1985)). See also State v. D'Acquisto, 124 Wis. 2d 758, 765, 370 N.W.2d 781 (1985) (quoting Lock v. State, 31 Wis. 2d 110, 118, 142 N.W.2d 183 (1966)). As such, the defendant must meet a higher threshold in order for this court to grant a new trial under the second prong. 5 The statute reads, in full: In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice. Wis. Stat. § 751.06. 6 No. State v. Armstrong, 2005 N.W.2d 98; State v. WI 119, Hicks, 202 ¶113, 283 2003AP2180 Wis. 2d 639, 700 Wis. 2d 150, 159-60, 549 N.W.2d 435 (1996); Vollmer v. Luety, 156 Wis. 2d 1, 17-20, 456 N.W.2d 797 (1990). This court has recently reaffirmed that our inherent power to reverse in the interest of justice is not limited to a direct appeal. ¶15 The State Armstrong, 283 Wis. 2d 639, ¶110. acknowledges that this court has the authority, in aid of its jurisdiction, to remand cases to the circuit court for fact-finding hearings. See, e.g., State v. Klessig, 211 Wis. 2d 194, 213-14, 564 N.W.2d 716 (1997); State v. Rewolinski, 159 Wis. 2d 1, 31-32, 464 N.W.2d 401 (1990). See also Wurtz v. Fleischman, 97 Wis. 2d 100, 108, 293 N.W.2d 155 (1980) ("When an appellate court is confronted with inadequate findings and the evidence respecting material facts is in dispute, the only appropriate course for the court is to remand the cause to the trial findings.") (citation omitted). court for the necessary The State thus concedes that it appears that this court has the authority to retain jurisdiction and remand this matter to the circuit court, even in a collateral proceeding, for a motion for postconviction relief based upon the interest of justice, should Maloney file such a motion. We agree with the State that we possess the authority to remand this matter to the circuit court for a motion for postconviction relief based upon the interest of justice. ¶16 We also conclude that a defendant's failure to assert that the court should exercise its authority to remand the case is not a procedural bar to the defendant if the defendant is 7 No. entitled to relief. 2003AP2180 Wisconsin law expressly allows this court to reverse a conviction "regardless of whether the proper motion or objection appears in the record." Wis. Stat. § 751.06. In evaluating whether a case should be retried in the interest of justice, this court "consider[s] the totality of the circumstances" to "determine whether a new trial is required to accomplish the ends of justice." Hicks, 202 Wis. 2d at 160 (citing State v. Wyss, 124 Wis. 2d 681, 735-36, 370 N.W.2d 745 (1985)). Because we have the authority to reverse a conviction and order a new trial even when the defendant fails to request this action, we conclude that we similarly have the authority to use our power of discretionary reversal to remand to the circuit court for a motion for postconviction relief in the interest of justice, notwithstanding the fact that the argument was raised by this court sua sponte. III ¶17 Concluding that we have the authority to remand a case to the circuit court for a postconviction motion in the interest of justice, we examine whether we should do so in this case. ¶18 We are reluctant "to grant a new trial in the interest of justice upon our own motion." Hicks, 202 Wis. 2d at 161 (citing Garcia v. State, 73 Wis. 2d 651, 655, 245 N.W.2d 654 (1976)). See also Armstrong, 283 Wis. 2d 639, ¶114 (citing Morden v. Continental AG, 2000 WI 51, ¶87, 235 Wis. 2d 325, 611 N.W.2d 659). We exercise our discretionary authority only in exceptional cases. Id. In order for this court to remand a case, an appellant must allege sufficient material facts that, 8 No. 2003AP2180 if true, would entitle him or her to relief. See, e.g., State v. Wis. 2d 111, Love, 2005 WI N.W.2d 62; State v. N.W.2d 50 (1996). 116, ¶¶2, 42, 56, 284 Bentley, 201 Wis. 2d "[I]f the defendant 303, fails 309-10, to 700 548 allege sufficient facts [] to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief," then the circuit court may deny the motion without a hearing, thereby rendering a remand unnecessary. See Bentley, 201 Wis. 2d at 309-10 (quoting Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972)) (other citations omitted). ¶19 We note that Maloney's postconviction motion did not allege that he was entitled to a new trial in the interest of justice. This court raised the issue because of materials that had been submitted to it prior to the first oral argument in the case. Thus, he has failed to allege any, much less sufficient, facts to raise a question of fact implicating the interest of justice before either the trial court or this court. ¶20 Nevertheless, issues raised prior to and during the first oral argument in Maloney I prompted this court to ask the parties to brief: (1) Whether this court has authority to remand to the circuit court for a motion for post-conviction relief based upon the interest of justice. (2) If so, whether this court should act upon that authority and remand as described above. Maloney I, 281 Wis. 2d 595, ¶¶3, 46. 9 No. ¶21 2003AP2180 In his response to our request, Maloney suggests that he is entitled to relief in the interest of justice because the jury was precluded from evaluating critical evidence: former Winnebago County District Attorney Joseph Paulus, who was the Special Prosecutor in this case, accepted bribes in 22 cases in exchange for giving defendants more favorable treatment. As noted above, Paulus was convicted of misconduct in his capacity as District Attorney in 2004. F. Supp. 2d 727 (E.D. Wis. United States v. Paulus, 331 2004). Paulus admitted accepting bribes in cases involving misdemeanor and traffic charges, and Id. at 729-30. one felony charge. According to the federal district court, "[a]ll of the bribes were received from a single attorney who had agreed to pay one-half of his retainer to Paulus in return for the favorable treatment of his clients." Id. at 730. as His behavior was characterized by the federal court "systematic or pervasive corruption . . . striking heart of the system of justice we have in this country." at the Id. at 735. ¶22 Paulus's What Maloney has failed to establish, however, is how misconduct had any impact on his trial. Paulus's corruption is only relevant if it affected the presentation of evidence, or lack thereof, during Maloney's trial. A ¶23 Maloney alleges that Paulus was not only accepting bribes in the 22 cases for which he was convicted, he alleges that Paulus also unlawfully tampered with evidence during his prosecution of Maloney. Maloney asserts that his attorney's 10 No. strategic to argue that perpetrator actual decision Tracy of the crimes 2003AP2180 Hellenbrand against the and Sandra, was the decision not to argue that Sandra's death was an accident, was driven contends by Paulus's that manipulation Paulus's of evidence. prejudiced actions the the Maloney defense in preparation for trial by manipulating the reporting of the cause of death and by tampering with other evidence, and that Paulus's actions now raise significant questions regarding: 1) the reliability of the Las Vegas videotapes shown to the jury; 2) the reliability of the experts' conclusions that Sandra's death was a homicide and that the fire was caused by arson; and 3) the reliability of the medical examiner's conclusions as to the cause of Sandra Maloney's death. ¶24 First, Maloney implies that Paulus strategically edited the videotapes of Maloney and Hellenbrand s conversations in Las Vegas, altering the tapes to implicate Maloney in the death of Sandra.6 Maloney relies on affidavits of Jeanne Anthony Brant, a news reporter for WHBY radio in Appleton who, in March 2004, examined numerous records relating to Maloney's case.7 In her affidavits, Brant alleges that the State and Forensic Video disagree with regard to the editing of the videotapes. Brant's affidavits note that Bryan Del Monte, the employee of Forensic Video who was paid to assist in the editing of the Las Vegas 6 The parties dispute the extent of Special Paulus's involvement in the editing of these tapes. 7 Prosecutor The affidavits were not raised before the circuit court as part of Maloney's postconviction motion. 11 No. 2003AP2180 tapes, informed her that Paulus had significantly edited the videos. In her affidavit, Brant also contends that the original bill for Del Monte's editing was $27,645.99, but that the final bill was Special only $5,500.99. According Prosecutor Biskupic told her to Brant's the earlier affidavit, bill was a draft of a bill and the $5,500.99 was the corrected bill for work actually completed. Yet, Brant asserts in her affidavit that Del Monte informed her that the $27,645.99 was not a draft, that the original bill reflected services actually rendered, but that they reduced the charges because they were informed the prosecution would not be using much of their work. ¶25 In addition, Maloney provided this court with two evaluations from individuals who reviewed the original tapes and the tapes.8 enhanced "enhanced" tapes, These which were evaluations shown to concluded the jury, that were the of a significantly reduced quality as compared to the original tapes. The evaluations also alleged that portions of the transcripts were not accurate when compared to the original tapes. ¶26 Second, information Department Maloney that and initial the Brown implies evidence regarding Paulus reports from the County Arson Task labeled the fire an accident. this that Green Force withheld Bay Fire actually Maloney asserts that withholding investigators' 8 preliminary beliefs The evaluations were provided by Michael Syverson, Owner, Kolb Syverson Communications, Appleton, Wisconsin (July 8, 2005) and Loraine Henes, Henes & Henes Court Reporting Service, Appleton, Wisconsin (July 6, 2005). These were also not raised in the circuit court. 12 No. caused the defense to make the strategic 2003AP2180 decision against arguing that Sandra's death was an accident. ¶27 Maloney further alleges that Paulus withheld this information from Dr. Gregory Schmunk, a Brown County Medical Examiner, and withholding other this investigators. evidence impacted Maloney the implies medical that examiner's autopsy. ¶28 Maloney notes that this court recognized in Maloney I that Dr. Schmunk had indicated that the evidence that initial reports labeled the fire an accident which may have affected his ruling. was withheld from him, Maloney I, 281 Wis. 2d 595, ¶5 n.3.9 Maloney also provided this court with a review of the autopsy. The review was conducted by Dr. James D. Dibdin and completed on January 21, 2002. Dr. Dibdin concluded that "the conclusion that Ms. Maloney's death was caused by strangulation cannot be sustained." ¶29 In addition, Maloney suggests that a preliminary report by investigators, dated February 12, 1998, indicated that investigators believed the fire was caused by careless use of smoking materials, and that this was withheld from 9 the In State v. Maloney, 2005 WI 74, ¶5 n.3, 281 Wis. 2d 595, 398 N.W.2d 583 ("Maloney I"), we stated: Initial reports from the Green Bay Fire Department and the Brown County Arson Task Force actually labeled the fire an accident. Dr. Gregory Schmunk, the medical examiner in the case, has since indicated that this evidence was withheld from him, which may have affected his ruling. 13 No. investigating team. 2003AP2180 Maloney implies that the conclusions by the State's fire expert were erroneous. Maloney provides this court with a July 4, 2002, report evaluating the fire evidence by Dr. James G. Munger, Ph.D., MIFireE, CFPS. alleges that the State's Dr. Munger's evaluation investigation did not follow the systematic approach of the scientific method, asserts that the State's hypothesis regarding the cause of the fire constitutes "junk science," and concludes that the fire was caused by the misuse of smoking materials. ¶30 Third, Maloney contends that Paulus asked the medical examiner to delay issuing a death certificate for Sandra until the criminal investigation was completed. Maloney draws this court's attention to a letter from Paulus to Dr. Schmunk. this letter, issuing a Paulus death requests that certificate Dr. because, Schmunk refrain according to In from Paulus, issuing a death certificate might compromise the integrity of the investigation into Sandra Maloney's death.10 Maloney concludes that Paulus must have believed that Dr. Schmunk was not "on board" with Paulus's theory of the cause of Sandra's death. B ¶31 Upon review of the record, we find that Maloney has not alleged sufficient material facts to justify remanding the case for an evidentiary hearing. 10 We note that Maloney does not allege that any Wisconsin statute would preclude a medical examiner from postponing the issuance of a death certificate. 14 No. ¶32 Maloney preparation for and and his counsel during viewed trial. the The 2003AP2180 videotapes defense raised in no objections about the editing of the tapes or the transcripts of the edited tapes provided to the jurors. At trial, Maloney's attorney stated that he had no objection to allowing the jurors to read the transcripts while they viewed the edited video because they were "pretty good" and "right on." ¶33 Furthermore, Maloney was a party to the recorded Las Vegas conversations. exchange between Maloney objected at trial. ¶34 Maloney Had the editing significantly altered the and Hellenbrand, Maloney could have He did not. now suggests that Paulus's tapes was unlawful manipulation of evidence. editing of the Maloney apparently bases this suggestion on the fact that Paulus has been convicted of accepting bribes in other cases. However, Maloney fails to allege sufficient material facts that link Paulus's misconduct in other cases to the handling of evidence in this case. any such link, we conclude that Maloney's Absent allegations, his reliance on the affidavits, and the recent evaluations of the tapes, fail to justify remand on the basis of this record. ¶35 In addition, a review of the record demonstrates that the preliminary conclusion by the investigators that the fire was an accident was actually addressed at trial. Among other evidence, the jury evaluated testimony by Daniel G. Hughes, a 15 No. 2003AP2180 private fire investigator hired as an expert by the State,11 regarding his conclusions as to the cause of the fire. Hughes was asked about and dismissed the preliminary conclusions that the fire was an accident.12 decision because and argued Hellenbrand that was Maloney's attorney made a strategic Hughes's the conclusions actual perpetrator were and in error that the evidence demonstrated that a novice set the fire, not someone like Maloney investigations.13 ¶36 who as extensive experience with arson The jury ultimately convicted Maloney. These conclusions had allegations to the cause regarding of the fire the are preliminary an attempt by Maloney to reargue his case using a different theory of defense. Maloney has failed to present sufficient material facts that 11 We note that, at trial, the defense recognized that Maloney had attempted to hire Hughes, but that the prosecution had already retained him as their expert. 12 During the State's direct examination of Hughes, Special Prosecutor Biskupic questioned Hughes about the February 12, 1998, report. Hughes explained to the jury that, in his professional opinion, the preliminary conclusion that the fire was an accident was fully inconsistent with the evidence. Hughes based his opinion on the fact that the evidence demonstrated that there may have been more than one point of origin of the fire, that there had been "trailers" between the sources of the fire and the couch, and that someone had placed other smoking materials around the house to make it look like a careless use of smoking materials fire. 13 On direct and cross-examination of Hughes, Maloney's defense attorney raised concerns with the conclusions drawn by Hughes and attempted to demonstrate that an amateur, Hellenbrand, had set the fire, as opposed to Maloney, who had significant experience working with fires as an arson investigator. 16 No. would lead this court to conclude that Paulus's 2003AP2180 behavior amounted to misconduct that caused his attorney to choose one theory of defense over another. ¶37 In Maloney I, we concluded that Maloney had "failed to demonstrate deficient performance." ¶45. Maloney's trial counsel Maloney I, 281 Wis. 2d 595, decided to argue that Tracy Hellebrand, and not John Maloney, had murdered Sandra Maloney. Maloney's trial counsel decided against arguing that Sandra had died an accidental death. Because we concluded that Maloney failed to prove his trial counsel's decisions were deficient, we conclude that, without more, he is not entitled to relief. court's power of discretionary reversal does not This allow a defendant to obtain a new trial in an attempt to present a different defense theory years after the one competent counsel failed to persuade the jury. presented by See Buel v. La Crosse Transit Co., 77 Wis. 2d 480, 496, 253 N.W.2d 232 (1977) ("When there are alternative causes of action and one makes a choice, there is little room for arguing the real issue has not been tried"). See also State v. Hubanks, 173 Wis. 2d 1, 29, 469 N.W.2d 96 (Ct. App. 1992). ¶38 Finally, in his briefing and oral argument in this case, Maloney does not allege sufficient material facts that support his conclusion that Paulus believed Dr. Schmunk was not "on board," and fails to assert how Dr. Schmunk would change his conclusions regarding his professional opinion as to what caused Sandra Maloney's death. As this court said in Bentley and Nelson, conclusory allegations do not entitle a defendant to 17 No. relief in the interest of justice. 2003AP2180 Bentley, 201 Wis. 2d at 309, 313;14 Nelson, 54 Wis. 2d at 496-98.15 ¶39 We recognize that during Maloney's initial trial, the jury did not have the opportunity to review evidence of Paulus's misconduct because it did not yet exist; Paulus was charged and convicted subsequent to Maloney's trial. Maloney asserts that the interest of justice mandates a retrial so that the jury has the opportunity to hear and evaluate Paulus's misconduct in this case. information regarding Yet, because Maloney fails to present facts that Paulus's conduct in this case was unlawful, or that there exists any connection between Paulus's misconduct in the 22 particular cases to which Paulus admitted accepting bribes and Paulus's actions in prosecuting Maloney's homicide 14 "This court has long held that the facts supporting plea withdrawal must be alleged in the petition and the defendant cannot rely on conclusory allegations, hoping to supplement them at a hearing." State v. Bentley, 201 Wis. 2d 303, 313, 548 N.W.2d 50 (1996). 15 In Nelson, this court stated that if a motion to withdraw a guilty plea after judgment and sentence alleges facts which, if true, would entitle the defendant to relief, the trial court must hold an evidentiary hearing. However, if the defendant fails to allege sufficient facts in his motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, the trial court may in the exercise of its legal discretion deny the motion without a hearing. Nelson v. State, 54 (1972) (emphasis added). Wis. 2d 489, 18 497-98, 195 N.W.2d 629 No. case, no basis exists that would support a remand 2003AP2180 in this Hicks16 and matter. ¶40 This Armstrong.17 convictions case is distinguishable from In those cases, this court reversed the defendants' because newly discovered DNA evidence discredited 16 In State v. Hicks, this court ordered a new trial because the jury had not been made aware of DNA evidence which arguably excluded the defendant as the assailant in a sexual assault case where the identity of the assailant was a central issue. Hicks, 202 Wis. 2d at 163-72. Hicks was convicted of burglary, robbery, and two counts of sexual assault. Id. at 152. Postconviction DNA testing of hairs found at the scene and on defendant Hicks revealed inconclusive results with regard to the source of some of the hairs, and conclusively excluded Hicks as the source of one of the pubic hairs. Id. at 156. Hicks appealed, asserting ineffective assistance of counsel. Id. at 157. The trial court denied Hicks' appeal, concluding that it was not reasonably probable that testimony regarding the new DNA evidence would result in a different verdict. Id. The court of appeals reversed, finding ineffective assistance of counsel. This court affirmed on other grounds, using its Id. at 152. discretionary reversal powers because it concluded that the real controversy had not been fully tried. Id. at 152-53. 17 The defendant in Armstrong appealed his conviction under Wis. Stat. § 974.06, asserting that he was denied due process "because the jury instructions improperly shifted the burden of proof to him." State v. Armstrong, 2005 WI 119, ¶111, 283 Wis. 2d 639, 700 N.W.2d 98 (citation omitted). The circuit court denied Armstrong's appeal, and the court of appeals affirmed, concluding that it did not have the statutory authority of reversal because it was not permitted "to go behind a § 974.06 order [by the trial court] to reach the judgment of conviction." Id., ¶112 (citation omitted). We reversed the court of appeals, concluding that because the jury had not been given DNA evidence found at the scene of the murder that excluded Armstrong, and because the State had relied upon physical evidence as affirmative proof of Armstrong's guilt, the real controversy had not been tried. Id., ¶2. We vacated the judgment of conviction and ordered a new trial in the interests of justice. Id. 19 No. physical evidence prosecution. that Hicks, the 202 State had Wis. 2d at Wis. 2d 639, ¶¶2, 139, 146, 155-56. relied in its Armstrong, 159; on 2003AP2180 283 As in Hicks and Armstrong, new information has come to light in this case: the prosecutor in Maloney's case unlawfully accepted bribes in 22 other cases in which Paulus served as the prosecutor. However, unlike Hicks and Armstrong, where the newly discovered evidence compromised evidence on which the prosecution relied, Maloney has alleged no facts that would substantiate allegations that evidence on which the prosecution relied was compromised. Maloney has not presented this court with any objective factual assertions that, if true, would lead to the conclusion that Paulus unlawfully altered the detriment. tapes or manipulated any evidence to Maloney's We cannot conclude that Paulus's misconduct in other cases, without more, demonstrates Paulus's misconduct in this case. Consequently, we conclude that Maloney has not asserted facts to justify a remand for a motion for an evidentiary hearing. ¶41 the We recognize that this case raises concerns regarding integrity criminal of justice. Wisconsin's Maloney system raises of administration serious allegations of in contending that a prosecutor may have acted unlawfully in his prosecution of a homicide case. Indeed, concerns that Paulus may have mishandled the Maloney investigation led the Wisconsin Department of Justice to open an independent investigation into 20 No. the death of Sandra Maloney.18 allege sufficient material 2003AP2180 Though Maloney has failed to facts to support allegations that Paulus acted unlawfully in his prosecution of Maloney, if any current or future investigations uncover evidence that Paulus's actions in prosecuting Maloney constituted misconduct, Maloney may file his motion to the trial court raising such misconduct at that time. IV ¶42 We conclude that this court has the authority to use its power of discretionary reversal to remand to the circuit court a motion for postconviction relief in the interest of justice, even though the issue was first raised by this court, sua sponte. We further conclude, however, that Maloney failed to allege sufficient material facts, and no such facts currently exist within the record, to warrant a remand for an evidentiary hearing in the interest of justice. We therefore conclude that Maloney is not entitled to relief on the basis of this record. By the Court. The decision of the court of appeals is affirmed. 18 The Wisconsin Department of Justice has conducted an independent investigation into the possibility of other criminal conduct committed by Paulus while he was the Winnebago County District Attorney. Maloney's case was one of the cases under review. Maloney I, 281 Wis. 2d 595, ¶10 n.6; Paulus, 331 F. Supp. 2d at 736. It appears from comments at oral argument that there may be one or more additional investigations pending. 21 No. 1 2003AP2180

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.