State v. Christian R. Aguirre-Hodge

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 31, 2023
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. 2021AP1991 Cir. Ct. No. 2009CF528

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

CHRISTIAN R. AGUIRRE-HODGE,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Brown County:
TAMMY JO HOCK, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

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).

¶1 PER CURIAM. Christian Aguirre-Hodge, pro se, appeals from an
order denying his postconviction motion without a hearing. Aguirre-Hodge
No. 2021AP1991

contends that he should be allowed to withdraw his plea to a sexual assault charge
based upon a defective plea colloquy and newly discovered evidence. We
conclude that his claim regarding the plea colloquy is procedurally barred and that
the allegations in the postconviction motion were insufficient to establish a claim
of newly discovered evidence. We therefore affirm.

BACKGROUND

¶2 Aguirre-Hodge entered a no-contest plea to the charge of
second-degree sexual assault of a child in 2010. On a no-merit appeal, this court
identified a potential basis for plea withdrawal—noting that the circuit court had
failed to advise Aguirre-Hodge of the elements of the offense and the
constitutional rights Aguirre-Hodge was waiving by entering a plea. In response,
counsel filed a supplemental no-merit report with an attached affidavit in which
Aguirre-Hodge averred that, notwithstanding the defective colloquy, he
understood the elements of the offense and his constitutional rights. Based upon
that concession, we affirmed the judgment of conviction.

¶3 In 2021, Aguirre-Hodge filed a motion for a “new trial,” which the
circuit court construed as a motion for plea withdrawal. As grounds,
Aguirre-Hodge claimed: (1) a defective plea colloquy; (2) the recantation of a
witness’s statement; and (3) the lack of DNA evidence. Aguirre-Hodge did not
expand upon a bald assertion in the motion that the plea colloquy was defective.
Regarding the recantation, Aguirre-Hodge alleged that, in 2019, the victim’s
brother told several people, “My mother made us lie and I know my father is
innocent.” As to the DNA evidence, Aguirre-Hodge pointed to a statement made
by his trial counsel at his sentencing hearing that no male DNA was found on a

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pair of the victim’s panties. Aguirre-Hodge further argued that the recantation and
the lack of DNA evidence constituted newly discovered evidence.

¶4 The circuit court denied the motion without a hearing. The court
first noted that Aguirre-Hodge had failed to identify what statement the victim’s
brother had recanted, or to provide any feasible motive for the victim’s brother to
have made an initially false statement. The court next found that Aguirre-Hodge
was aware of the results of the DNA testing before he entered his plea. The court
then determined that any recantation or lack of DNA on the victim’s panties did
not create a reasonable probability of an acquittal at trial given that the victim
herself had not recanted.

¶5 Aguirre-Hodge now appeals the order denying his postconviction
motion. He raises the defects in his plea colloquy that this court identified during
his prior no-merit appeal, as well as the arguments he made in his postconviction
motion that the recantation and lack of DNA evidence constituted newly
discovered evidence warranting plea withdrawal.1

DISCUSSION

¶6 In order to obtain a hearing on a postconviction motion, a defendant
must allege material facts sufficient to warrant the relief sought. State v. Allen,
2004 WI 106, ¶¶9, 36, 274 Wis. 2d 568, 682 N.W.2d 433. No hearing is required,
though, when the defendant presents only conclusory allegations or when the

1
In his reply brief, Aguirre-Hodge also argues that the circuit court relied upon
inaccurate sentencing information regarding his physical abuse of family members. Aside from
the fact that this issue was not preserved in the postconviction motion that is the subject of this
appeal, this court will not address arguments made for the first time in a reply brief. See Bilda v.
County of Milwaukee, 2006 WI App 57, ¶20 n. 7, 292 Wis. 2d 212, 713 N.W.2d 661.

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record conclusively demonstrates that he or she is not entitled to relief. Nelson v.
State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). A circuit court may also
properly deny a postconviction motion without a hearing if the defendant’s claim
is procedurally barred. See State v. Romero-Georgana, 2014 WI 83, ¶71, 360
Wis. 2d 522, 849 N.W.2d 668.

¶7 We review a circuit court’s decision to deny a postconviction motion
without an evidentiary hearing de novo, independently determining whether the
facts alleged in the motion would entitle the defendant to relief. See State v.
Bentley, 201 Wis. 2d 303, 308, 548 N.W.2d 50 (1996). Here, we conclude that
Aguirre-Hodge was not entitled to a hearing on his postconviction motion because
his defective plea colloquy claim was procedurally barred and his allegations
regarding the recantation and DNA evidence did not satisfy the criteria for newly
discovered evidence.

¶8 First, a matter already litigated cannot be relitigated in subsequent
postconviction proceedings. See State v. Witkowski, 163 Wis. 2d 985, 990, 473
N.W.2d 512 (Ct. App. 1991). The validity of Aguirre-Hodge’s plea was already
litigated on his no-merit appeal. The claim is therefore procedurally barred.

¶9 Furthermore, Aguirre-Hodge’s concession that he in fact understood
the information that the circuit court neglected to provide in its colloquy would be
fatal to any plea withdrawal claim based upon the defective colloquy. See State v.
Bangert, 131 Wis. 2d 246, 274, 389 N.W.2d 12 (1986) (a defendant must
demonstrate both that the plea colloquy was defective and that the defendant did
not understand information that should have been provided). Because the record
demonstrates that Aguirre-Hodge would not be entitled to relief, the court had dual
grounds to deny Aguirre-Hodge’s defective colloquy claim without a hearing.

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¶10 Next, for newly discovered evidence to establish a manifest injustice
warranting plea withdrawal after sentencing, a 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.”
State v. McCallum, 208 Wis. 2d 463, 473, 561 N.W.2d 707 (1997). If the
defendant proves all four of these requirements by clear and convincing evidence,
the court “must determine whether a reasonable probability exists that a different
result would be reached in a trial.” Id.

¶11 In addition, when the newly discovered evidence is a witness’s
recantation, the recantation “also requires corroboration of the recantation with
additional newly discovered evidence.” State v. McAlister, 2018 WI 34, ¶33, 380
Wis. 2d 684, 911 N.W.2d 77 (citation omitted). The corroboration requirement
for a witness recantation is met when: “(1) there is a feasible motive for the initial
false statement; and, (2) there are circumstantial guarantees of the trustworthiness
of the recantation.” Id.

¶12 Here, there can be no showing that the recantation by the victim’s
brother is material to an issue in the case without identifying what statement was
being recanted. In particular, we note that the probable cause portion of the
complaint did not assert that the victim’s brother had personally witnessed the
charged sexual assault and did not rely upon any statements made by the victim’s
brother. The recantation therefore fails to satisfy the third element of the
McCallum test.

¶13 We further note that the trustworthiness of the recantation is highly
questionable, given that Aguirre-Hodge personally admitted at the plea hearing

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that the allegations in the complaint were true; he described to the agent who
authored the presentence investigation report several incidents in which he had sex
with the victim; and at the sentencing hearing he took full responsibility for the
sexual assault. Moreover, as the circuit court noted, the victim herself did not
recant her allegations, which leaves a low probability of a different result if the
matter were to go to trial.

¶14 Finally, Aguirre-Hodge’s trial counsel told the circuit court at
sentencing that he had discussed the lack of DNA evidence with Aguirre-Hodge
prior to the entry of his plea. The DNA results therefore fail to satisfy the first
element of the McCallum test and do not constitute newly discovered evidence,
either in their own right or as corroboration for the recantation. We conclude that
the court also properly denied Aguirre-Hodge’s newly discovered evidence claims
without a hearing.

By the Court.—Order affirmed.

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

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