COURT OF APPEALS

DECISION

DATED AND FILED

September 7, 2022

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2020AP1818 Cir. Ct. No. 2011CF505

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

STATE OF WISCONSIN,

 PLAINTIFF-RESPONDENT,

 V.

KALEB D. ROSS,

 DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Marathon County: 

GREGORY B. HUBER, 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. Kaleb Ross, pro se, appeals from an order denying 

his postconviction motion for plea withdrawal based upon newly discovered 
No. 2020AP1818

2

evidence. We conclude that Ross is not entitled to relief because the recantation 

upon which Ross relies was not corroborated by other newly discovered evidence. 

Accordingly, we affirm.

BACKGROUND

¶2 The State charged Ross with two counts of sexual assault of a child 

under sixteen, one count of attempted sexual assault of a child under sixteen, one 

count of false imprisonment, two counts of disorderly conduct, one count of 

misdemeanor theft, and one count of being party to the crime of criminal damage to 

property. The charges arose from substantially similar allegations made by two 

fourteen-year-old girls, whom we will call “Karen” and “Sarah.”

1

¶3 Karen and Sarah alleged that they met Kaleb Ross, his brother Kyle 

Ross, and Dustin Widder2in a parking lot late at night to retrieve a T-shirt belonging 

to Karen that was in Kaleb’s possession. They asserted that Kaleb forcibly kissed 

and groped Karen in the parking lot and attempted to remove her clothing and make 

her touch his penis, while Dustin grabbed Sarah’s hips and forcibly sucked on her 

neck. When the girls broke free and ran away, the three males chased them to the 

apartment where Sarah lived with her family. Karen was able to get into the 

apartment first, leaving Sarah alone with the three males in the hallway. Kaleb then 

groped Sarah’s “[c]rotch and boobs” in the hallway while she tried to push him away 

and told the three males to leave. After Sarah also managed to get inside the 

apartment and lock the door, someone kicked the door until it cracked and also 

 

1

 This matter involves the victims of crimes. Pursuant to WIS. STAT. RULE 809.86(4) 

(2019-20), we use pseudonyms instead of the victims’ names.

2

 Kaleb Ross was seventeen years old at the time of the incident. The complaint does not 

specify the ages of Kyle or Dustin. For consistency and to avoid confusion between the brothers, 

we will refer to each of the three males by their first names throughout the remainder of this opinion.
No. 2020AP1818

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somehow knocked over a microwave that had been stored in the hallway. The three 

males then fled. 

¶4 Karen and Sarah’s allegations were partially corroborated by police 

documentation of the damage to the door; by the statement of Sarah’s sister that, 

when Karen opened the door to let Sarah in, the sister saw Sarah telling Kaleb to 

“stop” and pushing him away; by the observations of the police that both girls were 

crying shortly following the incident; by Dustin’s statement to police that 

“[s]omething did happen” but that Dustin was “not gonna snitch on anybody, no 

matter what”; and by Kaleb’s own statements to the presentence investigation report 

(PSI) author that he, Kyle, and Dustin had met the girls in the parking lot to 

exchange T-shirts before “hanging out” in the hallway outside Sarah’s apartment 

and that Dustin “was being dumb and kicked the door as they were leaving and they 

ran out of the building.” 

¶5 Pursuant to a plea agreement,3 Kaleb pled no contest to both the sexual 

assault count involving Sarah and to the party to the crime of criminal damage to 

property count, and he pled guilty to the disorderly conduct counts. In exchange, 

the State agreed to defer entry of judgment on the sexual assault count involving 

Sarah, to recommend the circuit court dismiss the theft count outright, and to dismiss 

and read in the other three counts, including the sexual assault and attempted sexual 

assault charges involving Karen. The deferred entry of judgment agreement was 

later revoked, and the court imposed and stayed a sentence consisting of eight years’ 

 

3

 The plea agreement also involved another case that is not at issue in this appeal.
No. 2020AP1818

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initial confinement followed by five years’ extended supervision on the sexual 

assault count and it placed Kaleb on probation for five years.

4

¶6 Nearly five years after the incident, and three years after the initial 

plea hearing, Karen went to the Wausau Police Department and recanted her 

statement. Kaleb moved to withdraw his plea to the sexual assault count involving 

Sarah based upon Karen’s recantation.5

¶7 At a hearing on Kaleb’s plea withdrawal motion, Karen testified that 

she and Sarah were in a parking lot with Kaleb, Kyle, and Dustin at about midnight 

on the night in question, but Karen denied having experienced or witnessed any type 

of “unwanted” or “assaultive” contact there. Karen also denied that Kaleb had taken 

her shirt earlier in the day. Karen further testified that the group had gone from the 

parking lot to the hallway outside the apartment where Sarah was living, where 

Karen again saw nothing of an “assaultive” nature occur. At some point after Karen 

went into the apartment while the others remained in the hallway, Karen heard Sarah 

yelling “stop” through the closed door. Karen said the boys were persistent about 

coming inside to hang out, but they could not because Sarah’s dad was sleeping.

¶8 Karen further testified that after both girls were in the apartment, the 

microwave being “thrown down the stairs” made a loud noise that awoke Sarah’s 

father. Sarah’s father was very upset about the microwave, and Sarah started crying 

and related a “story” to her father about what Dustin had done to her in the parking 

 

4

 Kaleb had served his sentences on the disorderly conduct and property damage counts 

by that time, and they are not at issue in this appeal.

5

 This was Kaleb’s seventh plea withdrawal motion. We discussed the prior six motions 

in State v. Ross, No. 2014AP2509-CRNM, unpublished op. and order (WI App Apr. 14, 2015), 

and we need not repeat the extensive procedural history related to those motions and Kaleb’s 

no-merit appeal here.
No. 2020AP1818

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lot. Karen sat in a corner and cried while Sarah was talking to her father, and Karen 

then “went along” and lied to both Sarah’s father and the police about Kaleb 

“molesting” her. Karen claimed that she created her own detailed lies about Kaleb 

beyond anything Sarah had alleged because Sarah was her best friend and she did 

not want to make Sarah “look like a fool or a liar.” Karen stated that she did not 

recant earlier because she was afraid she would get in trouble for lying, but that she 

finally came forward because her lies had been “haunting” her. 

¶9 The circuit court denied the plea withdrawal motion. It concluded that 

Karen’s recantation was not corroborated by a feasible motive for having made a 

prior false statement or by substantial guarantees of trustworthiness and that it was 

not material to the count involving Sarah, which had occurred outside of Karen’s 

sight. Kaleb appeals.

DISCUSSION

¶10 A defendant seeking to withdraw a plea after sentencing on grounds 

other than a defective plea colloquy must demonstrate by clear and convincing 

evidence that refusal to allow plea withdrawal would result in a “manifest injustice,” 

raising “serious questions affecting the fundamental integrity of the plea.” State v. 

Dillard, 2014 WI 123, ¶83, 358 Wis. 2d 543, 859 N.W.2d 44 (citation omitted). 

Newly discovered evidence may provide a basis for a manifest injustice claim. State 

v. Ferguson, 2014 WI App 48, ¶24, 354 Wis. 2d 253, 847 N.W.2d 900. A defendant 

seeking to withdraw a plea after sentencing based upon newly discovered evidence 

first must demonstrate 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.” Id. 
No. 2020AP1818

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¶11 When newly discovered evidence consists of a recantation, the 

defendant must additionally show that the recantation is corroborated by other 

newly discovered evidence—such as a feasible motive for the initial false statement 

combined with circumstantial guarantees of the trustworthiness of the recantation. 

Id., ¶¶24-25; see also State v. McAlister, 2018 WI 34, ¶33, 380 Wis. 2d 684, 911 

N.W.2d 77 (recognizing that recantations are inherently unreliable). Circumstantial 

guarantees of trustworthiness in turn may include whether the recantation is 

internally consistent; whether the recantation is consistent with other facts; and 

whether the recanting witness is aware of potential criminal consequences stemming 

from making a false accusation. Ferguson, 354 Wis. 2d 253, ¶25.

¶12 If a defendant establishes each of the above factors, the circuit court 

must then determine whether a reasonable probability exists that a jury, looking at 

both the initial accusation and subsequent recantation, “would have a reasonable 

doubt as to the defendant’s guilt.” State v. McCallum, 208 Wis. 2d 463, 474, 

561 N.W.2d 707 (1997). A determination that a recantation is incredible as a matter 

of law necessarily leads to the conclusion that it would not lead to reasonable doubt 

in the minds of the jury. Id. at 474-75.

¶13 There are several overlapping but potentially conflicting lines of 

authority regarding what standard(s) of review apply to plea withdrawal claims 
No. 2020AP1818

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based upon newly discovered evidence.6 We need not resolve any such conflicts 

here because we would reach the same result under an independent standard of 

review as we would under a deferential standard of review. Specifically, we 

conclude that Ross has failed to establish corroboration for the recantation. Because 

that failing alone is dispositive of the newly discovered evidence claim, we need not 

address the first four criteria of the newly discovered evidence test or whether a jury 

looking at both the initial accusation and subsequent recantation would have a 

reasonable doubt as to the defendant’s guilt. See McCallum, 208 Wis. 2d at 474; 

see also State v. Blalock, 150 Wis. 2d 688, 703, 442 N.W.2d 514 (Ct. App. 1989) 

(courts decide cases on the narrowest possible grounds).

¶14 We first conclude that Karen’s asserted motive for falsely accusing 

Kaleb is not feasible. Karen claimed that she lied to Sarah’s father, the police, and 

a forensic interviewer because she did not want to make Sarah “look like a fool or 

a liar.” But Sarah had not alleged that Kaleb assaulted Karen in the parking lot. 

Rather, Sarah had alleged that Dustin assaulted her there. Karen did not need to 

 

6

 For example, State v. Plude, 2008 WI 58, ¶¶31, 33, 310 Wis. 2d 28, 750 N.W.2d 42, 

states that the decision whether to grant a motion for a new trial based upon newly discovered 

evidence is a discretionary determination that involves a question of law regarding whether the 

newly discovered evidence would lead a jury to have reasonable doubt about the defendant’s guilt. 

State v. Taylor, 2013 WI 34, ¶25, 347 Wis. 2d 30, 829 N.W.2d 482, states that whether a manifest 

injustice warranting plea withdrawal has occurred presents a “question of constitutional fact,” under 

which we accept the circuit court’s findings of historical or evidentiary fact unless they are clearly 

erroneous, but independently determine whether those facts are sufficient to establish a 

constitutional violation. State v. Ferguson, 2014 WI App 48, ¶¶26-29, 354 Wis. 2d 253, 847 

N.W.2d 900, cites a concurrence by Justice Shirley Abrahamson in State v. McCallum, 208 Wis. 2d 

463, 481-83, 561 N.W.2d 707 (1997), for the propositions that: (1) questions regarding when the 

evidence was discovered and the defendant’s diligence in doing so are subject to the “clearly 

erroneous” standard of review applicable to factual determinations; (2) questions regarding whether 

the evidence was material and not cumulative are reviewed under the “erroneous exercise” standard 

applicable to discretionary determinations; and (3) whether a recantation is incredible as matter of 

law is integral to the circuit court’s ultimate discretionary determination as to whether the 

recantation would lead to a different result at trial.
No. 2020AP1818

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invent additional allegations against Kaleb regarding what occurred in the parking 

lot in order to support Sarah’s account or avoid calling her a liar.

¶15 Kaleb asserts that Karen was also motivated to invent false allegations 

against him because she was mad that he was ignoring her. There is no evidentiary 

basis for that assertion, however, because Karen did not testify to that motivation 

and Kaleb did not introduce any sworn statement from Karen to that effect.

¶16 Kaleb further asserts that text messages Karen sent to Dustin on the 

night of the incident reveal inconsistencies in her original story and that she had 

“rape” on her mind. The text messages were referenced in the original complaint, 

however, and are not newly discovered. They therefore have no place in the analysis 

of whether the recantation was supported by other newly discovered evidence.

¶17 Next, we conclude that Karen’s recantation lacked internal 

consistency. In particular, Karen’s testimony did not explain what the group had 

been doing together in the parking lot; when or why Karen entered Sarah’s 

apartment so as to leave Sarah in the hallway with Kaleb, Kyle, and Dustin; why 

Karen was standing on one side of the door listening to what was going on in the 

hallway; how the apartment door became cracked; or why any of the three males 

would throw the microwave down the stairs. Karen’s assertion that she lied to 

protect Sarah because Sarah was her best friend was undermined by the fact that 

Karen and Sarah did not have any further contact with one another once Sarah 

moved away a few weeks after the assaults. Moreover, Karen’s assertionsthat Sarah 

was crying merely because she was afraid of getting in trouble and that Karen was 

crying because she was scared and confused make little sense.

¶18 Karen’s recantation was also inconsistent with other facts that 

supported her prior statements. Most significantly, Karen’s assertion that nothing 
No. 2020AP1818

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“assaultive” occurred in the hallway was directly contradicted by Sarah’s statement 

that Kaleb assaulted her in the hallway and by the observation of Sarah’s sister that 

Sarah was saying “stop” and pushing Kaleb away when Karen opened the door to 

let in Sarah. Neither Sarah nor her sister recanted their statements in circuit court. 

In addition, Karen’s denial that Kaleb took her shirt contradicted Kaleb’s own 

statement that the group had met in the parking lot to trade shirts. 

¶19 Finally, as the circuit court noted, Karen’s extensive criminal history 

made it less likely that she would be concerned about potential criminal penalties 

for perjury. Without showing a feasible motive for Karen to have falsely accused 

Kaleb in the first place, or any substantial guarantees of trustworthiness for Karen’s 

recantation, Kaleb failed to satisfy his burden of demonstrating by clear and 

convincing evidence that the recantation was corroborated. It follows that he was 

not entitled to relief on his claim of newly discovered evidence. See State v. Eckert, 

203 Wis. 2d 497, 516, 553 N.W.2d 539 (Ct. App. 1996) (holding that all five 

elements are required).

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE

809.23(1)(b)5. (2019-20).