State v. Minerva Lopez

2014 WI 11

SUPREME COURT OF WISCONSIN
CASE NO.: 2011AP2733-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Minerva Lopez,
Defendant-Appellant.

REVIEW OF A DECISION OF THE COURT OF APPEALS
(No Cite)

OPINION FILED: March 7, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 3, 2013

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dane
JUDGE: Nicholas J. McNamara

JUSTICES:
CONCURRED: PROSSER, GABLEMAN, JJ., concur. (Opinion filed.)
DISSENTED: ABRAHAMSON, C.J., dissents. (Opinion filed.)
BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
filed.)
NOT PARTICIPATING:

ATTORNEYS:
For the plaintiff-respondent-petitioner, the cause was
argued by Aaron O’Neil, with whom on the briefs was J.B. Van
Hollen, attorney general.

For the defendant-appellant, there was a brief by Patricia
A. FitzGerald, Mount Horeb, and oral argument by Patricia A.
FitzGerald.
2014 WI 11
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2011AP2733-CR
(L.C. No. 2008CF1835)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

Plaintiff-Respondent-Petitioner, FILED
v.
MAR 7, 2014
Minerva Lopez,
Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.

REVIEW of a decision of the Court of Appeals. Reversed.

¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of an

unpublished decision of the court of appeals, State v. Lopez,

No. 2011AP2733-CR, unpublished slip op. (Wis. Ct. App. Sept. 26,

2012), reversing the Dane County Circuit Court's1 denial of

Minerva Lopez's ("Lopez") presentence motion to withdraw her

pleas.

¶2 We address how appellate courts should review a

circuit court's denial of a defendant's motion to withdraw a

plea before sentencing. In general "a circuit court should

1
The Honorable Nicholas McNamara presided.
No. 2011AP2733-CR

'freely allow a defendant to withdraw his plea prior to

sentencing for any fair and just reason, unless the prosecution

[would] be substantially prejudiced.'" State v. Jenkins, 2007

WI 96, ¶2, 303 Wis. 2d 157, 736 N.W.2d 24 (citing State v.

Bollig, 2000 WI 6, ¶28, 232 Wis. 2d 561, 605 N.W.2d 199; see

also State v. Rushing, 2007 WI App 227, 305 Wis. 2d 739, 740

N.W.2d 894).

¶3 The State does not argue that Lopez failed to present

a fair and just reason to withdraw her pleas.2 Thus, our

analysis in this case focuses on whether the circuit court

erroneously exercised its discretion in concluding that the

State would be substantially prejudiced if Lopez were allowed to

withdraw her pleas.

¶4 Lopez contends that the State has not shown that it

would be substantially prejudiced if she were allowed to

withdraw her pleas. She argues that the State offered no

evidence that the victim is unable to testify or that the

victim's memory has faded. Lopez further asserts that the State
failed to demonstrate that the case against Lopez would be more

difficult to prove, and that, in fact, significant evidence

against Lopez could still be admitted at trial.

¶5 The State contends that the circuit court properly

exercised its discretion in determining that the State would be

2
Lopez contended that her pleas were rushed, and that she
entered her pleas unknowingly due to her limited English.
Because the State conceded this issue, this opinion assumes,
without deciding, that these facts constitute a "fair and just
reason" for Lopez to withdraw her pleas.

2
No. 2011AP2733-CR

substantially prejudiced if Lopez were allowed to withdraw her

pleas. The State argues that, because the victim is now over 16

years of age, allowing Lopez to withdraw her pleas would prevent

it from presenting important audiovisual interviews of the

victim at trial. The State asserts that the circuit court was

correct to conclude that the State would be substantially

prejudiced because, without the audiovisual evidence, it would

be more difficult for the State to prove its case, the victim's

memory had faded during the pendency of the action, and it was

in the best interests of the victim not to be forced to testify.

¶6 We hold that the circuit court did not erroneously

exercise its discretion when it determined that the State would

be substantially prejudiced if Lopez were allowed to withdraw

her pleas. We sustain the discretionary determination of the

circuit court because the record reflects that it was "the

product of a rational mental process by which the facts of

record and law relied upon are stated and are considered

together for the purpose of achieving a reasoned and reasonable
determination." State v. Canedy, 161 Wis. 2d 565, 580, 469

N.W.2d 163 (1991) (citations omitted). Accordingly, we reverse

the court of appeals.

I. FACTUAL ALLEGATIONS

¶7 In a trial against Lopez, the State would have to

prove 22 felony counts of physical abuse of a child. The

State's burden of proof is the highest standard in the law,

beyond a reasonable doubt. The record reflects that the State
would have sought to prove the facts alleged in the criminal
3
No. 2011AP2733-CR

complaint in part, by using audiovisual interviews of the

victim. The State contends that it would be substantially

prejudiced if Lopez were allowed to withdraw her pleas because

it is now precluded from introducing video evidence under Wis.

Stat. § 908.08(3) (2009-10)3 as the victim is now over 16 years

of age. Thus, we turn to the factual basis for the allegations

against Lopez and describe the audiovisual recordings at issue

in this case.

¶8 On September 25, 2008, Madison Police Detective Robert

Hale ("Detective Hale") was "dispatched to [an address] in the

Town of Madison, Dane County, Wisconsin, in reference to a child

abuse investigation." Detective Hale was sent to investigate a

report of "an emaciated female child in the closet . . . [with]

some type of injury to her head." Upon arrival, Detective Hale

identified A.O., the primary victim in this case. Detective

Hale described the injuries to A.O. as follows:

[Hale] immediately identified [A.O.]4 as a victim
of a horrendous crime inasmuch as she was virtually
covered from head to toe with bruises [and] with
various bloody wounds to the top scalp of her head, an
open gash to her right cheek, various generations of
bruises ranging in color from purple to green to
yellow, and injuries that were consistent with what
[Hale] later found were breaks in her right hand and a
broken right kneecap.
Detective Hale identified two suspects in the case, Lopez and

Porfirio Olivas-Lopez ("Olivas"), the victim's parents.

3
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
4
The criminal complaint refers to the victim as "AOL."

4
No. 2011AP2733-CR

¶9 After rescuing A.O. from her home, Detective Hale

transported her to the University of Wisconsin Children's

Hospital. Upon examination, A.O. was found to have "two breaks

to the fingers of her right hand, one of which was an older

break, the second of which was a newer break." A.O.'s broken

right kneecap "was going to need surgical treatment."

¶10 A child abuse specialist concluded that "the multiple

bruises and fractures present [on A.O.] are not consistent with

any medical cause." The specialist also noted that A.O.

"appeared malnourished," and was "potentially going to be

suffering from life-long disabilities due to injuries sustained

from the abuse, including but not limited to scarring resulting

in permanent disfigurement and injuries leading to limb

immobility." The specialist medically diagnosed A.O. with:

1. Definite physical abuse of a child.

2. Serial child torture.

3. Physical neglect of a child.

4. Medical neglect of a child.

5. Educational neglect of a child.

6. Consistent with causation of great mental harm.
¶11 On September 26, 2008, Detective Hale spoke with Lopez

at the Town of Madison Police Department. During the

discussion, which was conducted through the assistance of a

State-certified English-Spanish interpreter, "Lopez admitted to

causing the majority of the injuries sustained by [A.O.] and
observed by Detective Hale." Lopez admitted to having "hit

5
No. 2011AP2733-CR

[A.O.] on the head with a [broomstick]." "The broom was

described as a metal broom, and it was bent from the attack."

¶12 The criminal complaint, filed October 2, 2008, relates

that Detective Hale elicited further admissions from Lopez

during the interview:

When asked how often she would hurt [A.O.],
[Lopez] said she would [use] Defendant Olivas' belt.
She said that she used the belt on [A.O.'s] buttocks
area. When asked if she ever punched [A.O.] with a
fist, she said yes, and also said that she would slap
[A.O.]. Detective Hale asked if [she] had ever bitten
[A.O.] as [A.O.] looked like she had some bite marks
on the inside of her legs. Lopez said that she did
not bite her on the inside of her leg, and when asked
where she did bite her, Lopez pointed to the right
side of her face by the jaw line and said "Here."
. . .

Detective Hale asked her what the worst thing she
had done to [A.O.] was, she responded by saying "Well,
hitting her on the head." When asked if it was when
she hit her on the head with the metal broom or other
times, Lopez responded there were other times. When
asked specifically what she used to strike [A.O.] on
the head with, she said she once had used "a frying
pan."
Lopez admitted that police would be able to identify the frying

pan she had used to strike A.O. because "it got kind of dented

on the bottom." When Detective Hale asked her how many times

she had struck A.O. on the head, Lopez replied, "[l]ately it has

been quite often."

¶13 Lopez also admitted to Detective Hale that she had

poured hot water on A.O., and stated "'[y]eah, it was hot from

being on the stove and we were both in the kitchen and she
wasn't hurrying enough.'" Lopez continued by saying that she

6
No. 2011AP2733-CR

would "'lose it' and have this 'stupid reaction,' saying 'I

threw it on her clothes' with [A.O.] responding 'You're burning

me, you're burning me.'"

¶14 Detective Hale also asked if Lopez had ever cut A.O.

with a knife. Lopez said that, in fact, "she had used a knife

to cut [A.O.] with. . . . When asked if [A.O.] screamed, she

said yes. When asked if there was a lot of blood, she said

'Yes.'"

¶15 When asked what other ways she abused A.O., Lopez

admitted to strangling her. "[Lopez] said 'Be quiet, be quiet

or I'll make you be quiet.' At that point, she would press down

on [A.O.'s] neck . . . . Lopez said that she would leave red

marks on [A.O.'s] neck and that those would go away and then

bruises would come later." Lopez noted that A.O. would try to

defend herself, but "'[t]hat would make me angrier and I would

just say to her, you're not going to beat me.'"

¶16 On October 6, 2008, and again on October 16, 2008,

A.O. gave statements about her abuse in the form of recorded
audiovisual interviews.5 In these audiovisual recordings, A.O.

recounts detailed descriptions of the abuse. The circuit court

reviewed the audiovisual recordings as part of its determination

of whether the State would be substantially prejudiced if Lopez

were allowed to withdraw her pleas.

5
Any audiovisual recordings beyond these two are not the
subject of this court's review.

7
No. 2011AP2733-CR

¶17 In the audiovisual recordings, A.O. related how Lopez

hit her on the knee "with a metal baseball bat" on the day that

she was rescued.6 A.O. gestured to her fully braced and

immobilized right leg while she said "it hurt a lot" and that

she was barely able to walk. Subsequent medical diagnosis

revealed that her kneecap had been broken.

¶18 A.O. described that, three days before the attack with

the bat, Lopez hit her twice in the back of the head with a

piece of metal tube from a scooter, tearing her scalp. A.O.

pointed to the location of the injury to her scalp and described

that she was "bleeding a lot" and that she had to clean her own

bloodstains out of the carpet. A.O. then described a "piece of

flesh" detaching from her scalp while in the bath and being able

to "feel a hole" in the back of her head. A.O. also related

that Lopez refused to seek medical attention for A.O.'s

injuries.

¶19 About "three weeks" before the interviews, A.O.

further described seeing that Lopez "had something behind her
back," so she knew that Lopez "had something to hit me with."

Lopez hit her in the face with the metal bar from a drawer,

causing what A.O. described as a "hole" underneath her eye.

A.O. pointed to the dark circle under her eye. A.O. said that

Lopez forced her to wear "dark glasses and [her] hat" in public

to conceal the injury.

6
All quotations from the audiovisual recordings are A.O.'s
own words, as translated in the audio track of the recording.

8
No. 2011AP2733-CR

¶20 A.O. also described an attack, which occurred

approximately four weeks before the interviews, where Lopez

choked A.O. for accidentally dropping pizza on the floor during

dinner. A.O. lost consciousness and "peed her pants."

According to A.O., Lopez stopped the attack because she feared

that the "pigs would be here any minute." A.O. was then forced

to "stand in the corner [of her parents' bedroom] for the whole

night." As A.O. began to fall asleep, Olivas threw ice water on

her face.

¶21 A.O. described "being careful to make sure teachers

didn't see the bandages" as she pointed to scars on her wrists

from Lopez cutting her with a kitchen knife. She recalled that

Lopez cut her so deep "it opened me up [to where] I could see

white, and I said 'it's my bone.'" A.O. recalled that Lopez

would "sometimes throw the knife at me." Lifting up her shirt,

A.O. showed scars left when the knife hit her.

¶22 A.O. related that if Lopez noticed "that the frying

pan had a little speck of beans on it" after A.O. did the
dishes, Lopez would hit her on the head with the pan. This

abuse occurred "about five times." Because of being struck in

this way, the handle of one pan broke off, while another became

"bent." A.O. described that these beatings caused her "a lot of

pain, and [she] felt like something burst."

¶23 A.O. described an instance when she was crying as a

result of the repeated beatings and Lopez "bit her on the face"

in an effort to get her to "shut up before someone hears."
Lopez left "teeth mark bruises" on A.O.'s skin.
9
No. 2011AP2733-CR

II. PROCEDURAL HISTORY

¶24 On October 2, 2008, the State filed a criminal

complaint against Lopez, and she made her initial appearance

with counsel. Lopez's bail was initially set at $25,000 cash.

The criminal complaint, which also served as the factual basis

for Lopez's eventual pleas, alleged 27 separate counts against

Lopez and Olivas for the physical abuse A.O. suffered. The

complaint included 25 counts of intentionally causing bodily

harm to a child, contrary to Wis. Stat. § 948.03(2)(b) (2007-

08), a class H felony, and two counts of intentionally causing

great bodily harm to a child, contrary to § 948.03(2)(a) (2007-

08), a class C felony. Lopez was charged with 16 of the 27

counts, including both counts of causing great bodily harm.

¶25 On October 8, 2008, the State notified Lopez of its

intent to use the October 6 audiovisual recording of A.O. at

trial under Wis. Stat. § 908.08.7 The notice came just six days

7
Wisconsin Stat. § 908.08 provides, in relevant part:

(1) In any criminal trial or hearing . . . the
court or hearing examiner may admit into evidence the
audiovisual recording of an oral statement of a child
who is available to testify, as provided in this
section.

(2)(a) Not less than 10 days before the trial or
hearing, or such later time as the court or hearing
examiner permits upon cause shown, the party offering
the statement shall file with the court or hearing
officer an offer of proof. . . . That party shall
give notice of the offer of proof to all other
parties, including notice of reasonable opportunity
for them to view the statement before the hearing
under par. (b).

10
No. 2011AP2733-CR

after Lopez's initial appearance and two days after the

interview was recorded. At the time A.O. was 14 years old. The

State filed a similar notice relating to the October 16, 2008

audiovisual recording on July 3, 2009.

¶26 On October 9, 2008, Lopez, represented by a different

attorney, waived her right to a preliminary hearing and was

bound over for trial. On November 3, 2008, Lopez was arraigned

on the Information, which charged Lopez and Olivas with 49

counts of felony child abuse. Lopez entered pleas of not guilty

and not guilty by reason of mental disease or defect. On

December 1, 2008, an Amended Information was filed, which added

penalty enhancers to certain counts for use of a dangerous

weapon.

¶27 On December 4, 2008, the State and Lopez filed a

"Stipulation and Agreement Regarding Audiovisual Recording."

The agreement acknowledged that "the State has provided the

defense with a copy of an audiovisual recording of a child." The

parties agreed that "neither party will make additional copies
of the videotaped statement, nor will either party allow

additional copies to be made by any other entity or individual."

¶28 On January 27, 2009, Lopez's attorney filed a motion

to withdraw from representation. In the motion, counsel stated

that he was seeking to withdraw at the request of Lopez. On

January 29, 2009, the court granted the motion to withdraw. On

February 6, 2009, the State Public Defender appointed a new

attorney for Lopez.

11
No. 2011AP2733-CR

¶29 On March 23, 2009, the court held a status conference

in the case. The court set a trial date of July 14, 2009.

¶30 On April 10, 2009, Lopez's attorney filed a motion to

withdraw from representation because Lopez "no longer wants me

to represent her." The court granted the motion to withdraw the

same day.

¶31 On June 19, 2009, Lopez, now represented by a third

attorney, filed a motion to sever her trial from Olivas'. On

June 23, 2009, the court held a hearing and granted Lopez's

motion to sever, concluding that there was a possibility that

Lopez and Olivas would pursue "mutually antagonistic" defenses.

After granting Lopez's motion, the court kept the July 14 trial

date for Olivas,8 but did not set a trial date for Lopez due to a

pending plea offer.

¶32 On July 22, 2009, Lopez's third attorney filed a

motion to withdraw as Lopez's counsel. Counsel noted that Lopez

had written to both the public defender's office and to the

court requesting new appointed counsel. Counsel argued that
"[t]his matter currently has no dates scheduled for trial and

neither Ms. Lopez nor the state will be prejudiced by any delay

in appointment of new counsel."

¶33 On July 31, 2009, the court9 held a hearing on the

motion to withdraw and stated:

8
Olivas' trial date was later postponed to December 1,
2009.
9
The Honorable Stuart Schwartz presided over both this
hearing and the September 18, 2009 motion hearing.

12
No. 2011AP2733-CR

There is nothing in the law that says the
defendant has to like her attorney. What the
defendant is entitled to under the law is effective
representation and counsel who is diligent in pursuing
in this case his obligations as it relates to Ms.
Lopez.

You, [Counsel], are the third attorney who's been
on this case. As I listened to Ms. Lopez's comments,
half of her comments had to do with her background and
her upbringing and had nothing to do with whether or
not she could get along with you for purposes of
representation.
¶34 At the motion hearing, the State referenced the need

to timely proceed. Indeed, the court referenced the potential

prejudice to the State if the trial did not occur before A.O.

turned 16 years old:

The State has made reference to the potential
prejudice that it runs into in this matter. I realize
May of next year is still ten months away. But, at
that point in time, the alleged victim in this matter
would be turning sixteen, which would impact on the
use of the Safe Harbor tapes. Also, we are talking
here about a child who was fourteen when these events
allegedly occurred, which means this case has been
pending over and hanging over the head of this child
for a substantial period of time.
The court then evaluated Lopez's arguments and indicated it was
unwilling to allow counsel to withdraw and delay the matter

further:

I don't see the delay here being for really any
legitimate purpose. . . .

I don't see that there's been an argument
presented here that allows me to say that counsel has
done anything other than act professionally in this
matter. The fact that Ms. Lopez may not like what she
hears is not counsel's fault.

. . .

13
No. 2011AP2733-CR

I don't find any basis here to allow counsel to
withdraw, and I'm going to deny the motion.
¶35 On August 13, 2009, the court held a scheduling

conference. Lopez's trial was set for December 15, 2009, with a

motion hearing to be held in September.

¶36 On September 18, 2009, the court heard various

motions, including the State's motion to admit the audiovisual

recordings of A.O. at trial. Prior to the court's ruling,

Lopez's attorney briefly asked how the State planned to use the

recordings:

[DEFENSE COUNSEL:] Is it their intention to try
to use those instead of live testimony?

THE COURT: No. I don't think the law allows
that.

[THE STATE:] No. We use -- We use the tapes in
conjunction with live testimony.

THE COURT: That's what I said. I don't think
the law allows that. At preliminary hearing --

[THE STATE:] Yes.

THE COURT: But not for purposes of the trial.

[THE STATE:] No. The witness will be on the
stand and we'll play it.

[DEFENSE COUNSEL:] Then I guess to the extent
that it would be a prior consistent statement, if
there is those kind of challenges to the testimony, I
think it would be appropriate under that theory. But,
I just don't understand what they're going to gain out
of it, if the witnesses are going to show up in court
and testify as one would expect.
¶37 The court immediately clarified, however, that it was

addressing the State's motion to admit the audiovisual

14
No. 2011AP2733-CR

recordings under Wis. Stat. § 908.08, and not as a prior

consistent statement:

We're talking here about audio visual recordings of a
statement of a child coming in under 908.08 of the
statutes.

More specifically, the statute indicates under
the law that in this particular case, the audio visual
statement can be used before the child's 16th birthday
and if the interests of justice warrant its admission
under subsection (4) of the statutes.10

10
Wisconsin Stat. § 908.08(4) provides:

(4) In determining whether the interests of
justice warrant the admission of an audiovisual
recording of a statement of a child who is at least 12
years of age but younger than 16 years of age, among
the factors which the court or hearing examiner may
consider are any of the following

(a) The child's chronological age, level of
development and capacity to comprehend the
significance of the events and to verbalize about
them.

(b) The child's general physical and mental
health.

(c) Whether the events about which the child's
statement is made constituted criminal or antisocial
conduct against the child or a person with whom the
child had a close emotional relationship and, if the
conduct constituted a battery or a sexual assault, its
duration and the extent of physical or emotional
injury thereby caused.

(d) The child's custodial situation and the
attitude of other household members to the events
about which the child's statement is made and to the
underlying proceeding.

(e) The child's familial or emotional
relationship to those involved in the underlying
proceeding.

15
No. 2011AP2733-CR

[A.O.] is fifteen now, I believe. So, she meets
the first criteria.
¶38 The court then granted the State's motion and deemed

the audiovisual statements admissible, citing to the statutory

factors of Wis. Stat. § 908.08(4):

If you look at subsection (4), it indicates that
in determining whether the interests of justice
warrant the admission of an audio visual recording of
a statement of a child who is at least 12 years of age
but younger than 16 years of age, there are various
factors the Court looks at. The child's chronological
age, the level of development, capacity to comprehend
the significance of the events and to verbalize about
them.

(f) The child's behavior at or reaction to
previous interviews concerning the events involved.

(g) Whether the child blames himself or herself
for the events involved or has ever been told by any
person not to disclose them; whether the child's prior
reports to associates or authorities of the events
have been disbelieved or not acted upon; and the
child's subjective belief regarding what consequences
to himself or herself, or persons with whom the child
has a close emotional relationship, will ensue from
providing testimony.

(h) Whether the child manifests or has
manifested symptoms associated with posttraumatic
stress disorder or other mental disorders, including,
without limitation, reexperiencing the events, fear of
their repetition, withdrawal, regression, guilt,
anxiety, stress, nightmares, enuresis, lack of self-
esteem, mood changes, compulsive behaviors, school
problems, delinquent or antisocial behavior, phobias
or changes in interpersonal relationships.

(i) Whether admission of the recording would
reduce the mental or emotional strain of testifying or
reduce the number of times the child will be required
to testify.

16
No. 2011AP2733-CR

I've viewed the video tapes, as I've indicated,
in this matter. Although the child does have the
capacity to verbalize about them, my sense of
recollection from looking at those tapes was that she
was, first of all, more comfortable talking in Spanish
than she was in English regarding these. She
certainly has chronological age and level of
development, capacity to understand the significance
of the events.

She seemed to be, despite the allegations that
were put forth by the State and as a result of what I
saw on the tape, physically and mentally healthy
enough to testify both in person and as was presented
on the tape, particularly since she's now been living
in a different environment.

The events about which this child's statement is
made certainly constitute, assuming she is believed,
the criminal or antisocial conduct perpetrated against
the child. And that [A.O.] had a close emotional
relationship with the defendant in this matter. And
the conduct constitutes a battery at a minimum, and
the allegations clearly are physical abuse. And its
duration and the extent of that are set forth in the
tape.

I think that it's also fairly clear here that the
child's emotional relationship to those involved in
the underlying proceeding were set forth in the tape.
Her behavior or reaction to the previous events that
occurred to her were all set forth in the tape.

There are other considerations set forth in the
statute that I did take into account as well. The
child's behavior, attitude, demeanor during the course
of the interview I took into account. How the child
responded to various questions. And when I say how, I
don't mean the substance of the answers other than
that they were related to the questions that were
asked but whether or not she seemed hysterical or
straightforward in her presentation, things of that
type. Whether or not she evinced any signs of fear,
guilt, anxiety, stress and so forth.

I found the tapes to be pretty much
straightforward. They were interviewed. The person
conducting the interview attempted to put [A.O.] at

17
No. 2011AP2733-CR

ease as much as possible. Explained the purpose of
the proceedings. [A.O.] clearly understood the
difference between truth and lying. She will be
testifying as well in this matter.

I believe that under the considerations that the
Court needs to look at, that allowing the audio visual
tapes to be introduced is appropriate. However,
[A.O.] would need to testify first. And I believe
these tapes then come in under 908.01 sub (4)(a)2,
which provides that a prior consistent statement of a
witness is not hearsay if the declarant testifies at
trial and is subject to cross-examination; the
statement is consistent with the declarant's
testimony, which I assume it will be; and the
statement is offered to rebut any express or implied
charge against the declarant of a fabrication or
improper influence or motive.

The videotape also, as I've indicated, clearly
shows the understanding on the part of the child
regarding the importance of telling the truth and that
the content, circumstances of the statement contained
within the tape on their face provide an indicia of
trustworthiness.

So, I'll allow the videotape to come in.
¶39 On November 19, 2009, Lopez pled no contest to six of

the 22 counts against her.11 The remaining counts were dismissed

11
While there is no indication in the record that Lopez's
testimony at Olivas' trial was part of her plea agreement, she
did admit to physically abusing A.O. in her testimony. The
State described Lopez's plea agreement as "substantially the
same offer that has been available to her since the middle of
summer [2009]. It's just that now she wishes to accept
it . . . ."

18
No. 2011AP2733-CR

but read in pursuant to her plea agreement. The court accepted

Lopez's pleas and ordered a presentence investigation report

("PSI").

¶40 On December 2, 2009, both Lopez and A.O. testified

against Olivas at his trial.12 The State presented the

audiovisual recordings of A.O. as evidence against Olivas. On

December 4, the jury returned a guilty verdict against Olivas on

21 counts and found him not guilty on three.

¶41 On March 9, 2010, the PSI for Lopez's sentence was

filed with the circuit court. The PSI recommended a maximum

term of 37 years imprisonment with between 22 and 25 years of

initial confinement to be followed by 12 years of extended

supervision. Further, the PSI described an "Anticipated

Supervision Plan" that would preclude Lopez from having contact

with any of her five children.

¶42 On March 18, 2010, Olivas was sentenced to 57 years

imprisonment, with 20 years of initial confinement to be

followed by 37 years of extended supervision.
¶43 On March 19, 2010, Lopez moved the court pro se to

withdraw her pleas. On March 22, Lopez's third attorney

petitioned the court a second time to be allowed to withdraw as

Lopez's counsel. This time counsel argued that, because he had

advised Lopez to accept her plea agreement, her motion to

12
The Honorable Stephen E. Ehlke presided over Olivas'
trial and subsequent sentencing.

19
No. 2011AP2733-CR

withdraw her pleas placed her "in a posture essentially

adversarial to counsel."

¶44 On March 23, 2010, the court held a hearing on Lopez's

pro se motion to withdraw her pleas. The court addressed the

standard to be applied to Lopez's motion:

I have concluded based on our discussion here on the
record, and my review of the case law, that we will
have to have a specific hearing to give the defendant
an opportunity to present evidence in support of her
motion to withdraw. If she doesn't present evidence
supporting that, it would essentially have to be
denied outright. If she has evidence, then the burden
shifts back to the State I think on whether or not the
State is prejudiced. And if the State presents
evidence of prejudice to them as a result of the plea
that was entered and now asked to be withdrawn, then
Ms. Lopez would have to produce evidence rebutting the
prejudice, or the alleged prejudice. And I think
necessarily given the substance of what Ms. Lopez is
apparently alleging in her filing just recently, it
may well be that [Counsel] would have to be a witness.
So we're going to do this in steps.
The court then addressed Lopez's attorney's petition to withdraw

as counsel:

I think I have to grant -- I will grant
[Counsel's] motion to withdraw as counsel. We're
going to have a status conference on April 6th, which
was the date that we had scheduled for the sentencing
hearing. That will be a status conference hopefully
with new counsel for Ms. Lopez.
¶45 On April 6, 2010, the court held a status conference.

Lopez was represented by her fourth appointed attorney. Counsel

requested 30 days to prepare to argue Lopez's motion to withdraw

her pleas. The court agreed and scheduled a hearing for May 4,

2010.

20
No. 2011AP2733-CR

¶46 On May 4, 2010, the court held the hearing on Lopez's

motion to withdraw her pleas. At the outset, counsel requested

that he be allowed to withdraw as Lopez's attorney because she

had expressed that "she doesn't want me to proceed on this

case." The court considered the significant delay, denied

counsel's request, and stated:

This is clearly at this point reaching absurdity and
obvious delaying and obstruction. [Counsel's]
retention is limited. The question, the only question
that we're addressing today is the motion to withdraw
Ms. Lopez' pleas. And if she has a fair and just
reason to withdraw those pleas, then the burden will
shift to the State to prove whether they would be
substantially prejudiced by allowing her to withdraw
the pleas. There's no reason why counsel and the
defendant shouldn't be ready for this hearing today.
The Court granted them exactly the time that they
requested to be ready for this. Again, it's a very
limited inquiry right now and I'm not about to allow
Ms. Lopez to dismiss her fourth attorney and try to
have a fifth one appointed. Not at this stage, not at
this time, and not for the reasons cited, not any of
those are adequate by either counsel or Ms. Lopez. So
the motion to withdraw is denied.
¶47 The court then addressed Lopez's motion to withdraw

her pleas and heard testimony from Lopez and her former attorney

concerning the circumstances of Lopez's plea agreement.13 On

May 11, 2010, Lopez's attorney filed a formal motion to withdraw

her pleas.

13
The testimony on May 4, 2010, went to showing whether
Lopez entered her pleas "knowingly, intelligently, and
voluntarily." The parties did not address the fair and just
reason for Lopez's plea withdrawal or the substantial prejudice
to the State until May 18.

21
No. 2011AP2733-CR

¶48 On May 18, 2010, the court reconvened the continued

motion hearing to determine if Lopez knowingly, intelligently,

and voluntarily pled, and if so, whether she should be allowed

to withdraw her pleas. The State introduced Lopez's plea

questionnaire and waiver into evidence. The State also called

Detective Hale to testify with respect to the substantial

prejudice the State would face should Lopez be allowed to

withdraw her pleas:

DIRECT EXAMINATION BY [THE STATE]:

Q Good afternoon, Detective.

A Good afternoon.

Q Please state and spell your name for the record.

A It's Robert J. Hale, H-a-l-e.

Q Detective Hale, what is your occupation?

A I'm a detective for the Town of Madison Police
Department.

Q What is your connection to this case?

A I was the lead detective investigating the crime.

Q Did you interact with the victim in this case?

A Yes, on numerous occasions.

Q Or more specifically the victim [A.O.]?

A That's correct, yes.

Q When did you first meet her?

A I met her on the initial call back in, I believe
'08, October, I think of '08. It was in '08 when
the case was reported.

Q I think it was September.

22
No. 2011AP2733-CR

A September, sorry.

Q How did you find her at that time, in what
condition?

A I won't forget that. I found her coming out of a
bathroom, trying to coax her out of the bathroom
and saw her in a horrible, horrible condition.
She was emaciated, weak, full of blood. She was
just -- she was just a mess. I likened her to a,
dare I say, Holocaust victim, just completely
beaten up and fragile.

Q Sometime after that [A.O.] was interviewed at
Safe Harbor; is that correct?

A Yes, that's correct.

Q Do you recall how long after you first met her
that interview took place?

A I don't recall exactly. I'm surmising about two
weeks.

Q And how did she -- well, tell us please about
that interview process and what happened there?

[DEFENSE COUNSEL:] Your Honor, I'm going to
object. I think we're getting far away from the focus
of this motion.

[THE STATE:] Actually --

[DEFENSE COUNSEL:] We -- it's an attempt to re-
try the case, or try the case I should say.
¶49 The court clearly considered the substantial prejudice

prong of the analysis, and stated:

THE COURT: Well, the State does have the burden
to establish substantial prejudice. I would assume
that that's what this testimony is going to. I'm not
sure it's -- I mean, for the record as I mentioned at
our last hearing I have actually viewed the Safe
Harbor tapes. I've read the transcripts as I was
viewing them. So in terms of content goes I do agree
with [Counsel] that I'm not sure all of that's really
necessary.

23
No. 2011AP2733-CR

[THE STATE:] That being the case, Judge, I would
ask then, Judge, that you take judicial notice of the
fact that the Safe Harbor tape was used in evidence at
[Porfirio] Olivas' trial, that a recorded copy is part
of the record in this case along with a transcript,
and that as you indicated that you have reviewed both.

THE COURT: Okay. Any objection to me taking
judicial notice of those items, particularly the
transcript, which is really the best documentary piece
of evidence we have, of what I actually viewed and
read?

[DEFENSE COUNSEL:] No, sir.

THE COURT: Okay. I will take judicial notice of
that and for purpose of this hearing the tape and the
transcript of the Safe Harbor tape are part of this
record.
¶50 After hearing the evidence and testimony, the court

briefly recessed and then reconvened to hear argument from

counsel:

We're going to go back on the record. And I'm
prepared to hear summary arguments now from counsel.
I'm still -- as I said at the last hearing I'm still
viewing this as essentially three separate issues.
The first is whether the plea by Ms. Lopez was entered
knowingly, intelligently and voluntarily. The second
is whether she has a fair or just reason to withdraw
her plea. And the third would be considering whether
the State has proven substantial prejudice if she were
to be allowed to withdraw her plea.
¶51 Lopez's counsel first argued that Lopez's pleas were

deficient. Next, he argued that Lopez's desire to put on a

mental disorder defense, which she claimed was never addressed

by her prior attorneys, constituted a fair and just reason for

withdrawal of her pleas. Finally, counsel argued the subject of

this appeal——whether the State showed substantial prejudice:

24
No. 2011AP2733-CR

[DEFENSE COUNSEL:] And as far as a substantial
prejudice to the State, they have tapes on most of
this evidence. They've been through this evidence
once, that makes it the second time even easier. So
the prejudice to the State I think is minimal. All
present -– all witnesses are available. There are
transcripts, as I said videotape testimony, so the
argument that this would be an undo [sic] burden to
re-try -- or to try this case, I think that evidence
doesn't hold up. That argument doesn't hold up.

THE COURT: And do you acknowledge that under
Section 908.08(3) that the State would not be allowed
to use the Safe Harbor tapes at trial in this case?

[DEFENSE COUNSEL:] Because of the age?

THE COURT: Yes.

[DEFENSE COUNSEL:] I believe that would be the
case.
¶52 The State then argued against Lopez's plea withdrawal.

The State first contended that Lopez's pleas were entered

knowingly, intelligently, and voluntary. The State then

asserted that Lopez had presented no fair and just reason for

her plea withdrawal. Rather, the State argued that Lopez merely

"desire[d] to have a trial," which is insufficient under

Wisconsin law. Finally, the State addressed how it would be

substantially prejudiced by Lopez's plea withdrawal:

If in the alternative the Court were to find that
Ms. Lopez has shown a fair and just reason to withdraw
her plea, there is the next prong of analysis. The
burden shifts to the State to show that the State
would be substantially prejudiced by allowing the
withdrawal of this plea. And the seminole [sic] case
on the matter is State v. Bollig, I gave the citation
earlier, that says that's the case and if Ms. Lopez
were able to withdraw her plea the State would indeed
be substantially prejudiced because central to this
trial and central to the evidence in this case are the
video recorded statements taken by detectives at Safe

25
No. 2011AP2733-CR

Harbor of [A.O.], the principal victim, though not the
only victim in these charges, the principal victim in
these charges.

She was 14 years old at the time that she was
found. She was interviewed days after she was rescued
and the video recordings are now close to 20 months
old. She was a child witness. And those video
recordings are precluded from being admitted because
she turned 16 a few days ago. Those video recordings
are the most accurate testimony available of what
happened of her view at that point in time. Over the
nearly two years that have elapsed, or to be more
accurate, 20 months that have elapsed since the
recordings were made, memories do fade. Those
recordings include the description of incidents that
took place close to six months in some cases even
before the recordings were made as the information
alleges that some of this conduct was alleged to have
taken place as early as April of 2008, so the
incidents occurred as early as in some cases as two
years ago.

Not only the issue of accuracy and accurate
reflection of memory that is preserved in those tapes,
but also those tapes are demonstrative of [A.O.'s]
state, her physical state and her emotional state at
the time that they were made. Her demeanor, which is
essential to credibility determination, which is an
essential function of course of a jury, or trier of
fact, are lost if we cannot present those recordings.
In those recordings she looks like a terribly abused
child that she was. Fortunately for her now, she's
doing very well and looks great and that's not the
same presentation that would be made at trial at this
point in time. It wouldn't accurately reflect how she
appeared at the time and that is a substantial
prejudice that the State would suffer.
¶53 Having heard argument from both parties, the court

ruled on the motion. First, the court concluded that Lopez's

pleas were entered knowingly, intelligently, and voluntarily.

The court then addressed whether Lopez had presented a fair and
just reason to withdraw her pleas. The court expressed concern

26
No. 2011AP2733-CR

about Lopez's conduct, but in the end concluded that Lopez had

shown a fair and just reason to withdraw her pleas:

I'm confused on the record, I'm confused on this case
generally as to whether at times Ms. Lopez
misunderstands the proceedings or completely
understands them and is using the process and the
claim of misunderstanding to delay and frustrate the
basic administration of justice here. She certainly
did not expeditiously seek to withdraw her plea. She
waited until the trial and conviction and sentencing
of her husband. She waited until approximately ten
days after the Court received the presentence
investigation report with a recommendation for a
sentence by the Department of Corrections. . . .

Again, I think that's a really close call. I
think kind of taking all of the circumstances
together, the real language issues that Ms. Lopez
obviously is dealing with and all of the other factors
that are on the record, I think she probably has met
that burden of proof and that she has proven by
preponderance of the evidence a fair and just reason
for me to allow her to withdraw her plea.
¶54 The court then concluded, however, that allowing Lopez

to withdraw her pleas would substantially prejudice the State:

But as in the Bollig case and many of the others,
that conclusion does not end the [inquiries] as to
whether the plea withdrawal should be granted. It
then becomes the State's burden to prove that allowing
the defendant to withdraw her plea would result in
substantial prejudice to the State. The Bollig case
is directly on point for that as well as a case called
State v. Rushing, which is 305 Wis. 2d 739. It's a
Court of Appeals case. The Rushing case also involved
accusations of injuries to child, in this case it was,
in the case of the Rushing that case it was a sexual
assault and the defendant frequently changed his
lawyers [sic]. The defendant changed his pleas at
different times or attempted to and there was a
videotape that was subject of the evidence against the
defendant and was one of the reasons cited by the
trial court and the Court of Appeals as to why the

27
No. 2011AP2733-CR

State had shown substantial prejudice. In other words
that they would be in that case not be allowed to use
the tape.

In this case the Safe Harbor tapes taken of the
victim [A.O.] are lengthy. If I remember correctly
they're about three-and-a-half hours long. They are
compelling. The testimony in the tape is credible.
It's recent to when the events occurred. The
testimony is specific. Clear. The age of the victim
as reflected in the tapes is significant. And today
if she was forced to testify of the passage of time
from when the events occurred is significant here. I
think this is an absolutely clear and easy call on my
part to find that if the State was not allowed to use
the Safe Harbor tapes it would result in substantial
prejudice to the State.

I have to believe that part of [A.O.'s] therapy
and recovery from everything that happened to her has
included a need to forget somewhat, to move on, to
move forward, to try to make the best of the future
life in an attempt to overcome the harm that was done
to her. If she is indeed successful in her recovery
and therapy, then hopefully some of the things she's
already forgotten. I hope for her sake that's the
case. But because I think there's a real risk that
she has, in fact, again just given the passage of time
and the clarity and specificity of her testimony
there's no way that she could ever be expected to
reproduce the testimony she gave in the Safe Harbor
tapes and she shouldn't be forced to, and so like the
finding by the trial court in the Bollig case and the
Rushing case that I referred to, because the State
would face substantial prejudice to not be allowed to
use the Safe Harbor tapes, the defendant's motion to
withdraw her plea is denied.
¶55 On June 1, 2010, the court sentenced Lopez to 30 years

imprisonment, comprised of 20 years of initial confinement to be

followed by 10 years of extended supervision. Lopez moved for

postconviction relief on September 1, 2011, and the court denied

her motion on November 16, 2011. Lopez appealed.

28
No. 2011AP2733-CR

¶56 A divided panel of the court of appeals summarily

reversed in an unpublished opinion and order. Lopez, No.

2011AP2733-CR, unpublished slip op. at 2. The court of appeals

agreed with the circuit court that Lopez had shown a fair and

just reason to withdraw her pleas, but it held that that State

would not be substantially prejudiced. Id. at 3. The court of

appeals concluded that the circuit court had erroneously

exercised discretion in denying Lopez's motion to withdraw her

pleas. Id.

¶57 The court of appeals reasoned that the age limit in

Wis. Stat. § 908.08(3)(a) is a legislative determination and,

therefore, the limit cannot be prejudicial to the State. Id. at

4-5. The court of appeals also held that any assertion of faded

memory on the part of A.O. was purely speculative and,

therefore, the State did not meet its burden to show prejudice.

Id. at 6. Finally, the court appeals concluded that the State

was not substantially prejudiced because it could still use the

video portion of the audiovisual recordings to show A.O.'s
physical condition. Id.

¶58 Judge Paul Lundsten dissented. Id. at 7. He

concluded that the circuit court properly exercised its

discretion. He reasoned that the "loss of detail" that would

result from excluding the audiovisual recordings would result in

substantial prejudice. Id. at 7, 9. He concluded that there is

"no requirement that the State prove that the prejudice be such

that the State is substantially less likely to obtain a
conviction." Id. at 10-11.
29
No. 2011AP2733-CR

¶59 The State petitioned this court for review, which we

granted on February 11, 2013.

III. STANDARD OF REVIEW

¶60 "A decision to grant or deny a motion to withdraw [a

plea] is within the discretion of the trial court." State v.

Rhodes, 2008 WI App 32, ¶7, 307 Wis. 2d 350, 746 N.W.2d 599. "A

circuit court's discretionary decision to grant or deny a motion

to withdraw a plea before sentencing is subject to review under

the erroneous exercise of discretion standard." Jenkins, 303

Wis. 2d 157, ¶30 (citing State v. Kivioja, 225 Wis. 2d 271, 284,

592 N.W.2d 220 (1999)). All that "this court need find to

sustain a discretionary act is that the circuit court examined

the relevant facts, applied a proper standard of law, and, using

a demonstrated rational process, reached a conclusion that a

reasonable judge could reach." Id. (quoting Loy v. Bunderson,

107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982)).

IV. ANALYSIS

¶61 "Withdrawal of a guilty plea before sentencing is not
an absolute right." Jenkins, 303 Wis. 2d 157, ¶32 (citing

Canedy, 161 Wis. 2d at 583). "[A] circuit court should 'freely

allow a defendant to withdraw his plea prior to sentencing for

any fair and just reason, unless the prosecution [would] be

substantially prejudiced.'" Id., ¶2 (citing Bollig, 232

Wis. 2d 561, ¶28). "[T]he burden is on the defendant to offer a

fair and just reason for withdrawal of the plea" by a

preponderance of the evidence. Canedy, 161 Wis. 2d at 583-84.
"[O]nce the defendant presents a fair and just reason, the
30
No. 2011AP2733-CR

burden shifts to the State to show substantial prejudice so as

to defeat the plea withdrawal." Bollig, 232 Wis. 2d 561, ¶34.

¶62 Because the State has conceded that Lopez has shown a

fair and just reason for withdrawing her pleas, the burden is on

the State to show that granting the withdrawal would cause it

substantial prejudice. If the State meets this burden, Lopez

"must rebut evidence of substantial prejudice to the State."

Jenkins, 303 Wis. 2d 157, ¶43.

¶63 The State argues that it would be substantially

prejudiced by Lopez's plea withdrawal in three ways. First, the

State claims that its inability to introduce A.O.'s audiovisual

recordings under Wis. Stat. § 908.08 constitutes substantial

prejudice. Second, the State argues that A.O.'s faded memory as

a witness constitutes substantial prejudice. Finally, the State

asserts that it would be substantially prejudiced by the harm to

A.O. that would result from forcing her to testify.

¶64 Lopez argues that the State has not shown that it

would be substantially prejudiced if she were allowed to
withdraw her pleas. She contends that the State offered no

evidence that A.O. is unable to testify or that her memory has

faded. Lopez asserts that the State did not show that it would

be more difficult to prove its case and that, in fact,

significant portions of the evidence could still be admitted at

trial. Lopez also argues that the trial court did not actually

find the audiovisual recordings admissible under Wis. Stat.

§ 908.08, but rather, erroneously found them admissible as prior
consistent statements under Wis. Stat. § 908.01(4)(a)2. Thus,
31
No. 2011AP2733-CR

Lopez argues that A.O.'s age is irrelevant to the evidentiary

determination and therefore, substantial prejudice cannot

result.

¶65 We conclude that the circuit court found the

audiovisual recordings admissible under Wis. Stat. § 908.08, and

did not erroneously exercise its discretion when it determined

that the State would be substantially prejudiced if Lopez were

allowed to withdraw her pleas. Therefore, we reverse the court

of appeals.

A. Admission of A.O.'s Audiovisual Recordings

¶66 On October 8, 2008, just six days after the filing of

the criminal complaint, the State provided notice to Lopez of

its intent to use the audiovisual recordings of A.O.14 The State

sought admission of A.O.'s audiovisual recordings as the

"Audiovisual Recording of Child's Statement" pursuant to Wis.

Stat. § 908.08. Because A.O. was over 12 but under 16 years of

age, the statute required that the circuit court find that the

"interests of justice warrant" the admission of the recorded
statement. Wis. Stat. § 908.08(3)(a)2. In weighing the

admissibility of the recorded statement, the circuit court was

required to consider the factors listed in § 908.08(4).

¶67 On September 18, 2009, the circuit court heard

argument and deemed the audiovisual recordings admissible. The

14
At that time, only the October 6, 2008 recording had been
made. On July 3, 2009, the State provided notice to Lopez of
its intent to use the October 16, 2008 recording.

32
No. 2011AP2733-CR

court specifically referenced Wis. Stat. § 908.08(4) in granting

the motion:

We're talking here about audio visual recordings of a
statement of a child coming in under 908.08 of the
statutes.

[A.O.] is fifteen now, I believe. So, she meets
the first criteria.
¶68 The circuit court began its discussion of how the

audiovisual recordings met the requirements for admission by

noting that the court had personally viewed the recordings:

I've viewed the video tapes, as I've indicated,
in this matter. Although the child does have the
capacity to verbalize about them, my sense of
recollection from looking at those tapes was that she
was, first of all, more comfortable talking in Spanish
than she was in English regarding these.
¶69 The court then discussed how the recordings satisfied

Wis. Stat. § 908.08(4)(a):

She certainly has the chronological age and level of
development, capacity to understand the significance
of the events.
¶70 The court went further, addressing her physical and

mental health, as required by Wis. Stat. § 908.08(4)(b):

33
No. 2011AP2733-CR

¶71 The court also discussed the factors in Wis. Stat.

§ 908.08(4)(c), (d), and (e), including the alleged criminal

assault by a family member and its emotional impact on A.O.:

The events about which this child's statement is
made certainly constitute, assuming she is believed,
the criminal or antisocial conduct perpetrated against
the child. And that [A.O.] had a close emotional
relationship with the defendant in this matter. And
the conduct constitutes a battery at [a] minimum, and
the allegations clearly are physical abuse. And its
duration and the extent of that are set forth in the
tape.

Stat. § 908.08(4)(f), (g), and (h), and A.O.'s manifestations in

the interview:

and deemed them admissible:

I found the tapes to be pretty much
straightforward. They were interviewed. The person
conducting the interview attempted to put [A.O.] at
ease as much as possible. Explained the purpose of
34
No. 2011AP2733-CR

the proceedings. [A.O.] clearly understood the
difference between truth and lying. She will be
testifying as well in this matter.

recordings were trustworthy:

were admissible under Wis. Stat. § 908.08, the court then

addressed, presumably in response to argument from Lopez's

attorney, the admissibility of the recordings as prior

consistent statements:

And I believe these tapes then come in under 908.01
sub (4)(a)2, which provides that a prior consistent
statement of a witness is not hearsay if the declarant
testifies at trial and is subject to cross-
examination; the statement is consistent with the
declarant's testimony, which I assume it will be; and
the statement is offered to rebut any express or
implied charge against the declarant of a fabrication
or improper influence or motive.

In addition to being allowed by statute, there is
case law that allows the tapes to be used in that
regard. I would simply note to the parties that one
of the more recent cases was Ansani vs. Cascade
Mountain, Inc., at 223 Wis. 2d 39. That's a 1998
case.
Although it is unclear whether the court's determination
regarding admissibility of the recordings as a prior consistent

35
No. 2011AP2733-CR

statement was proper, the fact remains that the court first

properly deemed the recordings admissible pursuant to Wis. Stat.

§ 908.08.

¶76 The court's intent to admit the audiovisual recordings

under Wis. Stat. § 908.08 can be found elsewhere in the record.

During the pretrial proceedings, the court referenced the

importance of conducting a timely trial so that this evidence

could be admitted under § 908.08. For example, in response to a

July 2009 request by Lopez's third attorney to withdraw as

counsel, the court stated "I realize May of next year is still

ten months away. But, at that point in time, the alleged victim

in this matter would be turning sixteen, which would impact on

the use of the Safe Harbor tapes." At that time, the court

refused to allow further delay in the proceedings. The court's

concerns regarding a delay reflect that A.O.'s sixteenth

birthday would impact the admission of this evidence under

§ 908.08. The court's admission determination was not focused

on admission of the recordings as prior consistent statements.
Appellate courts are not quick to reverse a reasoned evidentiary

determination of the circuit court. See, e.g., State v.

Ringer, 2010 WI 69, ¶24, 326 Wis. 2d 351, 785 N.W.2d 448.

¶77 In sum, the State clearly gave notice that it sought

to admit the audiovisual recordings of A.O. under Wis. Stat.

§ 908.08. The court made clear on the record that it deemed the

recordings admissible under § 908.08. The record demonstrates

that the State had every intention of introducing this powerful
audiovisual evidence at Lopez's trial under that section. In
36
No. 2011AP2733-CR

fact, the State introduced the recordings at Olivas' trial under

§ 908.08. Regardless of the court's earlier comment that the

recordings "come in under 908.01 sub (4)(a)2," the court clearly

deemed the recordings admissible under § 908.08, and it

understood that A.O. turning 16 years old would impact their

admissibility. Thus, once A.O. turned 16 years old the State's

most compelling piece of evidence was no longer admissible at

trial in the same way, if at all. The fact that the State would

be precluded from introducing the recorded statements of the

child victim under § 908.08 is of great significance to a

substantial prejudice analysis.

B. Substantial Prejudice To The State

¶78 At the outset, we note that the circuit court did not

decide Lopez's motion to withdraw her pleas in a vacuum. In

reaching its conclusion, the court, which would be conducting

the trial in this case, considered the value of the audiovisual

evidence and the effect that allowing Lopez to withdraw her

pleas would have on the victim and the State. Ultimately, the
court concluded that substantial prejudice would befall the

State if Lopez were allowed to withdraw her pleas. The court

was thus in a particularly good position to reasonably conclude

that "this is an absolutely clear and easy call on my part to

find that if the State was not allowed to use the Safe Harbor

tapes it would result in substantial prejudice to the State."

We sustain the court's determination and now turn to the facts

which underlie that conclusion.

37
No. 2011AP2733-CR

¶79 On November 19, 2009, Lopez pled no contest to several

counts. The court found her guilty and ordered a PSI. In

exchange for her pleas, the State agreed to dismiss but read in

16 of the 22 counts against her. The dismissed counts could be

considered for sentencing purposes. The State did not otherwise

agree to any limitations regarding sentencing.

¶80 At the time of Lopez's pleas, the court had already

deemed the audiovisual recordings of A.O. admissible under Wis.

Stat. § 908.08, and had already discussed the need to proceed to

trial before A.O. turned 16 years old. Thus the court, the

State, and Lopez were all aware of the significance of having a

trial before that date. Even defense counsel had acknowledged

that the recordings would not be admissible once A.O. reached

her sixteenth birthday.15

¶81 On March 19, 2010, four months after Lopez entered her

pleas, she moved the court pro se to withdraw her pleas. As

A.O.'s biological mother, Lopez would have known that her motion

came less than two months before A.O.'s sixteenth birthday, at

15
On May 18, 2010, at the hearing on Lopez's request to
withdraw her pleas, the court engaged in the following exchange
with counsel:

THE COURT: And do you acknowledge that under
Section 908.08(3) that the State would not be allowed
to use the Safe Harbor tapes at trial in this case?

[DEFENSE COUNSEL:] Because of the age?

[THE COURT:] Yes.

[DEFENSE COUNSEL:] I believe that would be the
case.

38
No. 2011AP2733-CR

which time A.O.'s age would then render her audiovisual

interviews inadmissible under Wis. Stat. § 908.08. Lopez's

motion also came just ten days after the PSI was filed. The PSI

recommended that Lopez be sentenced to a maximum of 37 years

imprisonment, with 25 years of initial confinement followed by

12 years of extended supervision. The PSI also recommended

Lopez have no contact with her children. On March 18, 2010,

just one day before Lopez's change of heart, Lopez's husband,

Olivas, had been sentenced to 57 years imprisonment.

¶82 The contrast between Lopez's dilatory pre-trial

conduct and her more recent post-plea enthusiasm for putting the

State to its burden of proof at a trial does not escape our

notice. While not jugular in our review of the substantial

prejudice analysis, we note that Lopez's delayed request to

withdraw her pleas was also commented on by the trial court on

May 4, 2010. The court stated that "[t]his is clearly at this

point reaching absurdity and obvious delaying and obstruction,"

and that Lopez "certainly did not expeditiously seek to withdraw
her plea[s]." Certainly, the court understood that Lopez's PSI

recommended that she receive a lengthy prison sentence and have

no contact with her children, and her motion was made just one

day after her husband, Olivas, had been sentenced to 57 years

imprisonment. The timing of her motion at least raises a

question regarding the motivation underlying her change of

heart.

¶83 Specifically, in any of the approximately 13 months
before she entered her pleas, Lopez had every opportunity to
39
No. 2011AP2733-CR

request a timely trial. In fact, she could have demanded, but

did not demand, a speedy trial. Wis. Stat. § 971.10(2)(a).

Instead of insisting on a more expeditious trial date, the

record reflects that Lopez seemed to prefer delay. For example,

on December 17, 2008, two days before her final pretrial

conference, Lopez sought and received a continuance. On

January 27, 2009, Lopez's first attorney moved to withdraw as

counsel at Lopez's request. The court granted the motion. On

April 10, 2009, Lopez's second attorney moved the court to

withdraw as counsel, again at Lopez's request. The court

granted the motion. On July 7, 2009, Lopez filed a pro se

motion with the court seeking to dismiss her third attorney. On

July 22, 2009, Lopez's third attorney followed up on that

request by formally moving the court to withdraw as counsel.

Clearly, the court believed that Lopez was seeking delay, rather

than the opportunity to bring her case to trial. When the court

denied Lopez's third attorney's motion to withdraw as counsel on

July 31, 2009, it stated "I don't see the delay here being for
really any legitimate purpose." Lopez ultimately entered into a

plea agreement just weeks before her long delayed trial date.

¶84 Thereafter, Lopez moved to withdraw her pleas, and her

third attorney moved the court to withdraw as counsel. The

court granted counsel's motion. However, when Lopez requested

that her fourth attorney withdraw on May 4, 2010, the court

stated, "I'm going to deny counsel's motion to withdraw. This

is clearly at this point reaching absurdity and obvious delaying
and obstruction." The circuit court also noted that the timing
40
No. 2011AP2733-CR

of Lopez's request to withdraw her pleas was suspect. The court

determined that Lopez might be "using the process and the claim

of misunderstanding to delay and frustrate the basic

administration of justice here. She certainly did not

expeditiously seek to withdraw her plea[s]." It is not

unreasonable for the court to reference how the impact of these

delays and the timing of the motion would cause substantial

prejudice to the State if Lopez were allowed to withdraw her

pleas.

¶85 Ultimately, on May 18, 2010, the court denied Lopez's

motion to withdraw her pleas. Because we afford the circuit

court deference when we review its determination, our focus is

on the circuit court's findings and conclusions. Indeed, the

record reflects that the circuit court appropriately considered

the arguments of counsel, the language of the rule, the

audiovisual recordings themselves, and the pertinent case law.

The court did not deem the audiovisual recordings to be just one

more, cumulative, piece of evidence. Instead, the court
concluded they were "compelling" and that proceeding to trial

without being able to admit them as Wis. Stat. § 908.08 evidence

would cause the State substantial prejudice.

¶86 The test for substantial prejudice that Lopez espouses

is whether the State might still be able to prove guilt beyond a

reasonable doubt without admitting the audiovisual recordings

under Wis. Stat. § 908.08. The test, however, is not as Lopez

wishes. The test is whether the State would be substantially
prejudiced if Lopez were allowed to withdraw her pleas. The
41
No. 2011AP2733-CR

substantial prejudice that would result in this case is that the

State would lose the ability to admit significant, persuasive,

"compelling" evidence that would otherwise have been admissible

under § 908.08 at trial. The circuit court did not find Lopez's

arguments compelling, and neither do we.

¶87 Simply stated, Lopez now argues that the State is not

substantially prejudiced. Lopez opines that the State has

enough other evidence and that the State does not need the

audiovisual recordings to prove her guilty beyond a reasonable

doubt. Lopez concludes that the audiovisual recordings would

otherwise be partially admissible and that, in that limited

form, they are sufficient. Conveniently, Lopez's defense

strengthens as the quantity and quality of the State's evidence

weakens. Notably, even though the recordings were played as

Wis. Stat. § 908.08 audiovisual recordings at Olivas' trial, the

jury in that case still returned a verdict of not guilty on

three counts. Lopez's assertion that the State's case is strong

enough without the § 908.08 recordings is simply not the
applicable legal standard.

¶88 The plain language of Wis. Stat. § 908.08 should mean

something. Section 908.08 makes no room for admission of the

recordings once the child turns age 16. If audiovisual

recordings could otherwise be deemed admissible and presented to

the jury in the same way regardless of age, the limitations and

the factors listed in § 908.08(4) would be of little

42
No. 2011AP2733-CR

significance.16 While it is true that portions of the recordings

could be deemed admissible at trial, that outcome is far from

certain. Even if they were so admitted, the fact remains that

once A.O. turned age 16, the recordings would no longer be

admissible in their entirety, both aurally and visually, without

interruption and without limitation, as would have been

permitted under § 908.08 pursuant to the court's ruling. No

other evidentiary provision allows for these recordings to be

viewed and heard by the jury in the manner envisioned under

§ 908.08. When the State lost the ability to introduce the

recordings under § 908.08, it was substantially prejudiced.

¶89 Wisconsin Stat. § 908.08 was enacted in response to

"epidemic levels of child abuse in Wisconsin." 7 Daniel D.

Blinka, Wisconsin Practice Series: Wisconsin Evidence § 808.1,

at 884 (3d ed. 2008). The purpose of the law was to "allow

children to testify in criminal [proceedings] . . . in a way

which minimizes the mental and emotional strain of their

participation in those proceedings." Id., at 884-85; 1985
Wisconsin Act 262 § 1. If Lopez were allowed to withdraw her

16
While audiovisual recordings of children that do not meet
certain requirements of Wis. Stat. § 908.08 may be deemed
admissible under hearsay exceptions, see, e.g., § 908.08(7),
State v. Snider, 2003 WI App 172, 266 Wis. 2d 830, 668
N.W.2d 784, this does not mean that such recordings are
automatically admissible, nor does it mean that the recordings
would be played in the same manner as allowed under § 908.08.
No guaranty of admissibility applies to the other hearsay
exceptions. Audiovisual evidence admitted outside of § 908.08
would be presented in a manner consistent with the hearsay
exceptions, which are not likely to permit a party to simply
play the recording in its entirety for the jury.

43
No. 2011AP2733-CR

pleas, the State could no longer admit the audiovisual

recordings under § 908.08 and, thus, the purpose of the statute

would be frustrated. Contrary to the purpose of the law, if

Lopez were allowed to withdraw her pleas, A.O.'s "mental and

emotional strain" would be maximized rather than minimized.

¶90 Conveniently, it is Lopez who now wishes to put the

State to its burden to prove each and every element of the

offenses charged beyond a reasonable doubt. While putting the

State to its proof was her absolute right before she entered her

pleas of no contest, once she entered her pleas she no longer

automatically has the right to proceed to trial. See Jenkins,

303 Wis. 2d 157, ¶32. Rather, now that Lopez has entered her

pleas, the court is endowed with discretion to decide whether

Lopez had shown a "fair and just reason" for the withdrawal, and

whether allowing her to withdraw her pleas would cause

"substantial prejudice" to the State. Id., ¶2.

¶91 We conclude that the circuit court indeed applied the

appropriate test to the case at issue when it stated "[it is]
the State's burden to prove that allowing the defendant to

withdraw her plea would result in substantial prejudice to the

State." The court personally viewed the recordings and had

concluded that they were admissible. The court concluded that

the recordings were lengthy, compelling, timely, and credible:

44
No. 2011AP2733-CR

¶92 The circuit court considered whether the passage of

time would impact A.O.'s ability to convey the same message at

trial. The State argued that the significant passage of time

caused it substantial prejudice because, in part, memories fade:

Over the nearly two years that have elapsed, or to be
more accurate, 20 months that have elapsed since the
recordings were made, memories do fade. Those
recordings include the description of incidents that
took place close to six months in some cases even
before the recordings were made as the information
alleges that some of this conduct was alleged to have
taken place as early as April of 2008, so the
incidents occurred as early as in some cases as two
years ago.
The State further asserted that it would be substantially

prejudiced because A.O. could not now present herself as the

terribly abused child reflected in the recordings:

concluded that the State was substantially prejudiced because

the victim would not now be able to replicate the recorded

testimony at trial:

I think there's a real risk that she has, in fact,
again just given the passage of time and the clarity
and specificity of her testimony there's no way that
she could ever be expected to reproduce the testimony

45
No. 2011AP2733-CR

she gave in the Safe Harbor tapes and she shouldn't be
forced to, . . . .
¶94 In addition to the passage of time, the court

reasonably considered how A.O.'s therapy would impact her

ability to testify at trial, and thus prejudice the State. The

State argued that A.O.'s progress in therapy meant that she

would not present the same testimony at trial:

Fortunately for her now, she's doing very well and
looks great and that's not the same presentation that
would be made at trial at this point in time. It
wouldn't accurately reflect how she appeared at the
time and that is a substantial prejudice that the
State would suffer.
¶95 The court apparently agreed with the State and

concluded:

substantially prejudiced if it lost these contemporaneous

recordings, as they are the most accurate testimony available:

46
No. 2011AP2733-CR

¶97 The circuit court agreed that, given her age, A.O.

would not appear to be the same victim at trial:

The age of the victim as reflected in the tapes is
significant. And today if she was forced to testify
of the passage of time from when the events occurred
is significant here.
¶98 Thus, the court did weigh and consider whether the

State would be substantially prejudiced if it were required to

rely on A.O. as a witness without being able to present the

recordings under Wis. Stat. § 908.08. The court determined that

these recordings were compelling and powerful. The court

concluded that substantial prejudice would befall the State if

it were required to proceed without being able to introduce the

recordings under § 908.08. The court found that A.O. would be

unable to convey the same message at trial without the § 908.08

presentation. The passage of time and the State's inability to

introduce the audiovisual recordings under § 908.08 constituted

substantial prejudice. The court concluded that it was "an

absolutely clear and easy call" that the State would be

substantially prejudiced if Lopez were allowed to withdraw her

pleas. The court's conclusions regarding the impact on the

victim were reasonable. Losing the ability to introduce the

recordings under § 908.08 would not merely result in the same

testimony being presented in a different form, but the State

would be substantially prejudiced because, as the State put it:

"central to this trial and central to the evidence in this case

are the video recorded statements taken by detectives at Safe
Harbor of [A.O.], the principal victim, . . . ." Without

47
No. 2011AP2733-CR

admitting the recordings as envisioned under § 908.08, the State

was left with a completely different and less compelling

presentation of its evidence.

¶99 Indeed, as part of its determination regarding

substantial prejudice, the court considered relevant case law,

and correctly concluded that the State would be substantially

prejudiced if Lopez were allowed to withdraw her pleas:

[L]ike the finding by the trial court in the Bollig
case and the Rushing case that I referred to, because
the State would face substantial prejudice to not be
allowed to use the Safe Harbor tapes, the defendant's
motion to withdraw her plea is denied.
¶100 In Bollig and Rushing, the trial court determinations

of substantial prejudice to the State were upheld by this court

and the court of appeals respectively. The substantial

prejudice in Bollig and Rushing did not occur because the State

lost the ability to introduce an audiovisual recording of the

victim taken at a time nearly contemporaneous with the alleged

offenses. The substantial prejudice in Bollig and Rushing

resulted from the fact that the victim's memory would likely

have faded given a delay. In the case at issue, not only does

the State suffer the kind of prejudice which results from a

delay impacting the victim's memory, but here the State suffers

the additional loss of significant, persuasive, "compelling,"

audiovisual evidence that would otherwise have been admitted

under Wis. Stat. § 908.08.

¶101 In Bollig the defendant pled guilty to attempted
sexual contact with a child under the age of 13 in violation of

48
No. 2011AP2733-CR

Wis. Stat. §§ 939.32(1) and 948.02(1) (1995-96). Bollig, 232

Wis. 2d 561, ¶3. Seven months later, prior to sentencing but

after having learned that he would be required to register as a

sex offender, the defendant moved the court to withdraw his

plea. Id., ¶¶6-7. The circuit court concluded that the

defendant's misunderstanding regarding sex offender registration

did constitute a "fair and just reason" for plea withdrawal.

The court went further, however, to explain that even if this

did constitute such a reason, the State would still be

substantially prejudiced if the defendant were allowed to

withdraw his plea. Id., ¶¶6-7, 31-33. The circuit court found

substantial prejudice in that it would:

soon be 2 years since the event occurred, and one,
that has been a long time hanging over the head of the
victim, secondly, the victim is a child, long time to
expect evidence and testimony recollections to remain
fresh, so that any trial that would be held at this
late date might not, would not be fair to the victim,
would not be fair to the state.
State v. Bollig, 224 Wis. 2d 621, 640, 593 N.W.2d 67 (Ct. App.

1999).17

¶102 On appeal, this court agreed that the State would be

substantially prejudiced because the defendant's plea withdrawal

"would hamper the victim's ability to recall pertinent events."

Bollig, 232 Wis. 2d 561, ¶43. As in the case at issue, the

child victim in Bollig was available to testify, but the passage

17
The quotation of the trial court record is included in
the court of appeals decision, but not in the opinion of this
court.

49
No. 2011AP2733-CR

of time would have rendered the victim's testimony less

persuasive and, therefore, constituted substantial prejudice to

the State. Unlike the case at issue, however, in Bollig the

State did not lose the ability to introduce an audiovisual

recording of the child victim under Wis. Stat. § 908.08. Here,

the State would not only be prejudiced by the delay's impact on

the testimony, as in Bollig, but in the case at issue, the State

would also lose the ability to introduce the audiovisual

recordings under § 908.08.

¶103 In Rushing the substantial prejudice to the State was

not due to the State losing the ability to admit audiovisual

evidence, but rather, as in Bollig, it was due to the likely

impact the delay would have on the victim's testimony. The

defendant in Rushing pled guilty to first-degree sexual assault

of a child, contrary to Wis. Stat. § 948.02(1) (2004-05).

Rushing, 305 Wis. 2d 739, ¶1. Ten months later, but still

before sentencing, the defendant sought to withdraw his plea.18

The circuit court denied the defendant's motion, concluding that
allowing the defendant to withdraw his plea would cause

substantial prejudice to the State. The court noted that a

18
The substantial time between the entry of the defendant's
plea and his plea withdrawal is accounted for by an unusual
procedural issue. Two months after his plea hearing, the
defendant proclaimed his innocence during the presentence
investigation interview. On learning this, the circuit court
vacated the defendant's plea sua sponte. Six months later,
acknowledging that the vacatur was improperly entered, the court
reinstated the defendant's plea. It was at this point that the
defendant filed his formal plea withdrawal motion.

50
No. 2011AP2733-CR

video interview of the child, which the State intended to

introduce at trial, was "'reflective of a [sic] extremely

difficult child,' who 'appeared to be very reluctant, very hard

to interview, very hyperactive, very unwilling to engage in the

facts and circumstances in an——any substantial way.'" Id., ¶9.

Considering the passage of time, the court stated "'[w]e're now

more than a year and a half away from the actual incident, and

according to the affidavit provided by the State, his memory has

clearly been impaired, and that's easy to understand, when one

sees the videotape.'" Id. The court concluded that, despite

the fact that the video recording would still have been

admissible at trial, forcing the State to put this victim on the

stand for cross-examination after the passage of such a

substantial amount of time would constitute substantial

prejudice to the State.

¶104 The court of appeals agreed, concluding that the faded

memory of a victim could result in less persuasive testimony,

and thus cause substantial prejudice to the State. Rushing, 305
Wis. 2d 739, ¶16. Like the case at issue, in Rushing the State

had a fairly contemporaneous audiovisual recording of the

victim. Unlike the case at issue, however, the State in Rushing

would not have been precluded from introducing that video at

trial if the defendant were allowed to withdraw his plea.

Nonetheless, the court of appeals affirmed the circuit court's

determination that the State would be substantially prejudiced,

even though, unlike the case at issue, the State would not
otherwise lose the ability to present Wis. Stat. § 908.08
51
No. 2011AP2733-CR

evidence. Compare State v. Nelson, 2005 WI App 113, 282

Wis. 2d 502, 701 N.W.2d 32.19

¶105 In sum, the substantial prejudice to the State in the

case at issue encompasses not only the same kind of prejudice

found in Bollig and Rushing, but unlike those cases, the State

here also loses the ability to introduce audiovisual recordings

of the victim under Wis. Stat. § 908.08. Thus, the circuit

court's conclusion that "this is an absolutely clear and easy

call . . . to find that if the State was not allowed to use the

Safe Harbor tapes it would result in substantial prejudice to

the State" is quite defensible.

¶106 Here, the circuit court's determination that the State

would be substantially prejudiced is reasonable, consistent with

Wisconsin precedent, and supported by the record. The

substantial prejudice to the State in this case would result not

only from the delay and faded memory of the victim, but also the

loss of significant, persuasive, "compelling," and admissible

audiovisual evidence under Wis. Stat. § 908.08. The circuit
court did not erroneously exercise its discretion when it

19
In State v. Nelson the State alleged that it would be
substantially prejudiced if the defendant were allowed to
withdraw his pleas because it had "lost contact" with the
victim. 2005 WI App 113, ¶19, 282 Wis. 2d 502, 701 N.W.2d 32.
The State conceded that "at some point we probably would be able
to locate [the victim] again." Id. The court concluded that,
while the State "may have been somewhat inconvenienced" by the
withdrawal of the defendant's pleas, the State "failed to meet
its burden" to show substantial prejudice. Id., ¶22. These
facts are dramatically different than the case at issue here.

52
No. 2011AP2733-CR

concluded that the State would be substantially prejudiced if

Lopez were allowed to withdraw her pleas.

V. CONCLUSION

¶107 We hold that the circuit court did not erroneously

exercise its discretion when it determined that the State would

be substantially prejudiced if Lopez were allowed to withdraw

her pleas. We sustain the discretionary determination of the

circuit court because the record reflects that it was "the

product of a rational mental process by which the facts of

record and law relied upon are stated and are considered

together for the purpose of achieving a reasoned and reasonable

determination." Canedy, 161 Wis. 2d at 580. Accordingly, we

reverse the court of appeals.

By the Court.—The decision of the court of appeals is

reversed.

53
No. 2011AP2733-CR.dtp

¶108 DAVID T. PROSSER, J. (concurring). This case

presents issues arising from a defendant's motion to withdraw

her no contest pleas before sentencing. Current law on plea

withdrawal before sentencing is summed up in paragraph 61 of the

majority opinion:

"Withdrawal of a guilty plea before sentencing is
not an absolute right." Jenkins, 303 Wis. 2d 157, ¶32
(citing Canedy, 161 Wis. 2d at 583). "[A] circuit
court should 'freely allow a defendant to withdraw his
plea prior to sentencing for any fair and just reason,
unless the prosecution [would] be substantially
prejudiced.'" Id., ¶2 (citing Bollig, 232
Wis. 2d 561, ¶28). "[T]he burden is on the defendant
to offer a fair and just reason for withdrawal of the
plea" by a preponderance of the evidence. Canedy, 161
Wis. 2d at 583-84. "[O]nce the defendant presents a
fair and just reason, the burden shifts to the State
to show substantial prejudice so as to defeat the plea
withdrawal." Bollig, 232 Wis. 2d 561, ¶34.

Majority op., ¶61 (brackets in original).
¶109 In Jenkins, this court observed that the state did not

argue that it would be substantially prejudiced by Jenkins' plea

withdrawal. State v. Jenkins, 2007 WI 96, ¶2, 303 Wis. 2d 157,

736 N.W.2d 24. "Therefore, the issues are whether Jenkins had a
fair and just reason to withdraw his plea and how a reviewing

court should review the circuit court's denial of Jenkins'

motion." Id. The Jenkins court then provided a lengthy

discussion of the fair and just reason rule, including its

general principles and standard of review, its evolving history,

its application in general, and its application to the facts of

the Jenkins case. Id., ¶¶28-91.
¶110 Here, by contrast, "The State does not argue that

Lopez failed to present a fair and just reason to withdraw her
1
No. 2011AP2733-CR.dtp

pleas." Majority op., ¶3. Thus, the majority opinion "focuses

on whether the circuit court erroneously exercised its

discretion in concluding that the State would be substantially

prejudiced if Lopez were allowed to withdraw her pleas." Id.

¶111 In my view, three courts (including this court) have

been forced to struggle with whether the defendant's plea

withdrawals would substantially prejudice the State because they

have tried to apply an obsolete rule. Although I join the

majority opinion, I write separately to suggest that the fair

and just reason rule should be reexamined and revised so that a

defendant is required to meet a higher burden for plea

withdrawal before sentencing than the burden under current law.

The fair and just reason rule is outmoded because it fails to

account for nearly a half century of criminal justice reforms

and because it often has no relation to fairness toward or

prejudice to the defendant who is seeking to withdraw a plea.

Circumstances today are different from circumstances existing

when the fair and just reason rule was adopted. The fair and
just reason rule warrants reconsideration because it lacks a

sound policy basis and minimizes important protections for

defendants in the criminal justice system.

I. FAIR AND JUST REASON RULE

¶112 As stated in Jenkins, 303 Wis. 2d 157, ¶¶37-41, this

court adopted the fair and just reason rule in 1967. See State

v. Reppin, 35 Wis. 2d 377, 151 N.W.2d 9 (1967). The rule was

derived from the American Bar Association (ABA) Project on

2
No. 2011AP2733-CR.dtp

Minimum Standards for Criminal Justice——Pleas of Guilty § 2.1

(Tentative Draft, Feb. 1967).

¶113 Most of § 2.1 dealt with the withdrawal of guilty

pleas after sentencing. Section 2.1(a) of the tentative rule

read in part as follows: "(a) The court should allow the

defendant to withdraw his plea of guilty or nolo contendere

whenever the defendant, upon a timely motion for withdrawal,

proves that withdrawal is necessary to correct a manifest

injustice." Id. (emphasis added).

¶114 The language in paragraph (a) included three

significant words or phrases: (1) "should"; (2) "timely"; and

(3) "manifest injustice." All three terms implicate judicial

discretion following judicial fact-finding. The rule used

"should," not "shall," signaling discretion. The rule pointed

to "timely" motions to withdraw a plea, meaning that there was

no admonition to the court to grant untimely motions. "Manifest

injustice" was a concept requiring development, some of which

the ABA spelled out in several subparagraphs of paragraph (a).1

1
A court should allow a defendant to withdraw his plea due
to a manifest injustice when the defendant proves:

(1) he was denied the effective assistance of
counsel guaranteed to him by constitution, statute, or
rule;

(2) the plea was not entered or ratified by the
defendant or a person authorized to so act in his
behalf;

(3) the plea was involuntary, or was entered
without knowledge of the charge or that the sentence
actually imposed could be imposed; or

3
No. 2011AP2733-CR.dtp

¶115 Paragraph (b) of the rule then provided:

In the absence of a showing that withdrawal is
necessary to correct a manifest injustice, a defendant
may not withdraw his plea of guilty or nolo contendere
as a matter of right once the plea has been accepted
by the court. Before sentence, the court in its
discretion may allow the defendant to withdraw his
plea for any fair and just reason unless the
prosecution has been substantially prejudiced by
reliance upon the defendant's plea.
Id. (emphasis added).

¶116 The last sentence in paragraph (b) appears almost as

an afterthought. The sentence clearly established more lenient

criteria for plea withdrawal before sentencing, as though

neither the state nor the defendant had much of a stake in a

defendant's plea before sentencing, but the sentence did include

the word "may" and the phrase "in its discretion."

¶117 In February 1968 the ABA issued an Approved Draft of

the Standards Relating to Pleas of Guilty. This court applied

the Approved Draft in Libke v. State, 60 Wis. 2d 121, 128-29,

208 N.W.2d 331 (1973) and Dudrey v. State, 74 Wis. 2d 480, 482,

247 N.W.2d 105 (1976), except that the court substituted the

word "should" for the word "may" in each case.

¶118 In effect, the court reworded the ABA rule to read:

"Before sentence, the court should allow the defendant to

(4) he did not receive the charge or sentence
concessions contemplated by the plea agreement and the
prosecuting attorney failed to seek or not oppose
these concessions as promised in the plea agreement.

American Bar Association (ABA) Project on Minimum Standards for
Criminal Justice——Pleas of Guilty § 2.1(a)(ii)(1)-(4) (Tentative
Draft, Feb. 1967).

4
No. 2011AP2733-CR.dtp

withdraw his plea for any fair and just reason unless . . . ."

In Dudrey, the court not only removed the words "in its

discretion may" but also added the adverb "freely"——e.g., plea

withdrawal "should be freely granted prior to sentencing."

Dudrey, 74 Wis. 2d at 482 (emphasis added).2

¶119 Wisconsin had a limitation, however, that did not

appear in the ABA rule. In 1969 the Wisconsin Legislature

revised the Wisconsin criminal procedure code. The revision

created a new Wis. Stat. § 971.08(2) that read, "The court shall

not permit the withdrawal of a plea of guilty or no contest

later than 120 days after conviction." § 63, ch. 255, Laws of

1969. This limitation was later deemed regulatory, not

mandatory, in State v. Lee, 88 Wis. 2d 239, 246-47, 276

N.W.2d 268 (1979), but the court still noted that it was not

"inappropriate for the state to object to the consideration of a

motion to withdraw a plea that was brought beyond the time

prescribed by statutory regulation. . . . [E]ntertaining an

untimely motion to withdraw a plea would ordinarily constitute
an abuse of discretion." Id. at 247.

2
"In 1979 the ABA standard was revised to read as follows:
'After entry of a plea of guilty or nolo contendere and before
sentence, the court should allow the defendant to withdraw the
plea for any fair and just reason unless the prosecution has
been substantially prejudiced by reliance upon the defendant's
plea.'" State v. Jenkins, 2007 WI 96, ¶40, 303 Wis. 2d 157, 736
N.W.2d 24 (quoting State v. Canedy, 161 Wis. 2d 565, 581, 469
N.W.2d 163 (1991)).

Thus, this court adopted "should" six years before the ABA,
and it added the adverb "freely," which does not appear in the
ABA rule.

5
No. 2011AP2733-CR.dtp

¶120 In 1984 the legislature repealed Wis. Stat.

§ 971.08(2). 1983 Wis. Act 219, § 43. This removed any

explicit time limitation between a defendant's plea and a

defendant's sentence during which a defendant could move to

withdraw a plea.

¶121 In sum, since 1967, Wisconsin law has often appeared

to be moving to make it ever easier for a defendant to withdraw

a plea before sentencing at the same time it was making the

process of taking a plea more complex and more difficult. This

inconsistency is too blatant to ignore.

II. CHANGES IN CRIMINAL PROCEDURE

¶122 When the ABA adopted its rule on plea withdrawal in

1967, it stated that the "process [of taking pleas before a

trial] has received relatively little attention as compared to

the actual trial of criminal cases." ABA Project on Minimum

Standards for Criminal Justice——Pleas of Guilty 5 (Tentative

Draft, Feb. 1967). As a result, "the practices in cases which

are disposed of without trial are far from uniform." Id. Thus,
the objective of the proposed rule on plea withdrawal——designed

for the entire nation——was not "to bring about a substantial

shift away from the practice whereby trial-avoiding pleas are

obtained and accepted. Rather, the attempt is to formulate

procedures which will maximize the benefits of conviction

without trial and minimize the risks of unfair or inaccurate

results." Id. at 3 (emphasis added).

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No. 2011AP2733-CR.dtp

¶123 Preservation of Wisconsin's "any fair and just reason

rule" disregards the sea changes in criminal procedure since the

late 1960s.3 Some of these changes are noted below.

A. Defendant's Right to Counsel

¶124 Section 1.3 (Aid of counsel; time for deliberation) of

the ABA's Tentative Standards Relating to Pleas of Guilty

provided in part that:

(a) A defendant should not be called upon to
plead until he has had an opportunity to retain
counsel or, if he is eligible for appointment of
counsel, until counsel has been appointed or waived.
A defendant with counsel should not be required to
enter a plea if his counsel makes a reasonable request
for additional time to represent the defendant's
interests.

3
The current state of criminal procedure makes a lenient
plea withdrawal standard unnecessary. Detailed plea colloquies
seemed to influence the federal rule's shift [former Fed. R.
Crim. P. 32(d), present Fed. R. Crim. P. 11(d)(2)(B)] from
allowing plea withdrawal unless the government could show
prejudice to allowing withdrawal only if the defendant could
show a fair and just reason.

Given the great care with which guilty pleas are now
taken——including placing the plea agreement on the
record, making full inquiry into the voluntariness of
the plea, advising the defendant in detail concerning
his rights and the consequences of his plea,
determining that the defendant understands these
matters, and determining that the plea is accurate——
there is no reason to view pleas so taken as merely
"tentative," subject to withdrawal before sentence
whenever the government cannot establish prejudice.

5 Wayne R. LaFave et al., Criminal Procedure § 21.5(a), at 868
(3d ed. 2007) (internal footnote omitted). The view that pleas
are merely "tentative" until after sentencing is inconsistent
with contemporary practice.

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No. 2011AP2733-CR.dtp

¶125 These principles, which appear so fundamental today,

were not nationally recognized until the 1960s and 1970s. It

must be remembered that in Betts v. Brady, 316 U.S. 455 (1942),

the United States Supreme Court determined that even though an

indigent defendant requested counsel, the law did not require

that defendants be appointed an attorney in all cases. Id. at

457, 473. The Supreme Court reconsidered the issue and

overruled Betts in 1963. Gideon v. Wainwright, 372 U.S. 335,

339 (1963). In Gideon, the Supreme Court determined that a

defendant has the right to an attorney, even if he cannot afford

one. Id. at 344 ("[I]n our adversary system of criminal

justice, any person haled into court, who is too poor to hire a

lawyer, cannot be assured a fair trial unless counsel is

provided for him. This seems to us to be an obvious truth.").

The right to counsel spans the spectrum of criminal offenses for

which a defendant may be imprisoned, from felony to misdemeanor,

and no defendant may be imprisoned if he has been denied the

right to counsel. Argersinger v. Hamlin, 407 U.S. 25, 37
(1972).

¶126 Argersinger (involving the right to counsel in

misdemeanor cases) was not decided until five years after the

tentative ABA rule on plea withdrawal was issued. See id.

¶127 In sharp contrast, Wisconsin has recognized a criminal

defendant's right to counsel for more than 150 years. See

Carpenter v. Cnty. of Dane, 9 Wis. 249 (*274) (1859). "Section

7 of art. I., of the constitution of this state, and § 2 of
chap. 164, R. S., 1859, humanely and wisely provide that in all

8
No. 2011AP2733-CR.dtp

criminal prosecutions, the accused shall enjoy the right to be

heard by himself and counsel . . . ." Id. at 251 (*275-76); see

also State ex rel. Traister v. Mahoney, 196 Wis. 113, 122, 219

N.W. 380 (1928) ("The right of any one accused of a criminal

offense to be heard by counsel is guaranteed by our

constitution, art. 1, sec. 7."). Carpenter determined that

circuit courts have the power and the duty to appoint an

attorney for a defendant who cannot afford one, and the attorney

may recover his fees from the county. Carpenter, 9 Wis. at 252-

53 (*277-78). The court in Carpenter reasoned that "it would be

a reproach upon the administration of justice, if a person, thus

upon trial, could not have the assistance of legal counsel

because he was too poor to secure it." Id. at 251 (*275).

¶128 Reference in the 1967 ABA standards to the right to

counsel helps to place the plea withdrawal rule in historical

context. Today, failing to provide counsel to an indigent

defendant or ineffective assistance of counsel to a defendant

would provide compelling reasons to withdraw a plea before or
after sentencing. However, these sound reasons are not present

in this case.

B. Defendant's Right to Make Plea Decision

¶129 Section 3.2 (Relationship between defense counsel and

client) of the 1967 ABA standards reads in part: "(a) Defense

counsel should conclude a plea agreement only with the consent

of the defendant, and should ensure that the decision whether to

enter a plea of guilty or nolo contendere is ultimately made by
the defendant."

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No. 2011AP2733-CR.dtp

¶130 In Wisconsin, the decision to plead guilty or no

contest must be made personally by the defendant. State v.

Burns, 226 Wis. 2d 762, 771, 594 N.W.2d 799 (1999), and normally

a defendant will be asked on the record how she pleads so that

her decision is expressly and personally stated on the record.

As will be noted below, these principles do not help the

defendant in this case.

C. Plea Questionnaire and Waiver of Rights Form

¶131 This court has attempted to assure that criminal

defense attorneys conscientiously represent their clients. One

effective tool is the plea questionnaire. Plea questionnaires

and waiver of rights forms serve as checklists for attorneys and

defendants, in an effort to provide reasonable certainty that

all critical issues will be discussed during the attorney-client

relationship before the defendant enters a plea.

¶132 In all probability, plea questionnaires were not

widely used in the 1960s. The first reference to a plea

questionnaire in a Wisconsin Supreme Court decision did not
appear until 1986. State v. Carter, 131 Wis. 2d 69, 73, 389

N.W.2d 1 (1986) (referring to a 1983 Milwaukee County form).

The Wisconsin Court Records Management Committee appears not to

have developed a uniform form for the state until June of 1998.

¶133 Today's plea questionnaires are very detailed and may

include parallel text in a different language to assist a

defendant who is not fluent in English. The Spanish language

questionnaire used by Minerva Lopez (Lopez) was first published
in January 2006.

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No. 2011AP2733-CR.dtp

D. Comprehensive Plea Colloquies

¶134 Notwithstanding a defendant's representation by an

attorney and the defendant's likely use of a plea questionnaire,

this court has supplemented the plea requirements of Wis. Stat.

§ 971.08 and mandated an extensive, time-consuming plea

colloquy, State v. Brown, 2006 WI 100, ¶35, 293 Wis. 2d 594, 716

N.W.2d 906; State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12

(1986), to reinforce a defendant's understanding of the

circumstances with respect to his case, court procedure, and the

law, and to assure that any plea he makes is knowing,

intelligent, and voluntary.

¶135 The Brown court hailed the importance of the landmark

Bangert decision and quoted heavily from it. The Brown court

explained:

To head off postconviction hearings on plea
withdrawals, the [Bangert] court said:

We reiterate that the duty to comply
with the plea hearing procedures falls
squarely on the trial judge. We understand
that most trial judges are under
considerable calendar constraints, but it is
of paramount importance that judges devote
the time necessary to ensure that a plea
meets the constitutional standard. The plea
hearing colloquy must not be reduced to a
perfunctory exchange. It demands the trial
court's "utmost solicitude."
Brown, 293 Wis. 2d 594, ¶33 (quoting Bangert, 131 Wis. 2d at

278-79). "Such solicitude will serve to forestall

postconviction motions, which have an even more detrimental

effect on a trial court's time limitations than do properly

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No. 2011AP2733-CR.dtp

conducted plea hearings." Id. (quoting Bangert, 131 Wis. 2d at

279).

¶136 Plea colloquies of great length and detail simply did

not exist at the time the guilty plea withdrawal rule was

adopted. Today it is counterproductive to require circuit

courts to adhere to the comprehensive plea colloquy outlined in

Brown and then to instruct them that plea withdrawals should be

freely granted prior to sentencing for any fair and just reason.

¶137 If a defendant's plea is not knowing, intelligent, and

voluntary, the plea constitutes a "manifest injustice" and the

defendant may withdraw the plea before or after sentencing. If

the defendant was denied the effective assistance of counsel,

the defendant may withdraw the plea before or after sentencing.

State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996);

State v. Rock, 92 Wis. 2d 554, 558-59, 285 N.W.2d 739 (1979).

Grounds for "manifest injustice" enumerated in the original ABA

Project on Minimum Standards for Criminal Justice——Pleas of

Guilty § 2.1 (Tentative Draft, Feb. 1967) or in the revised ABA
Standards for Criminal Justice——Pleas of Guilty § 14-

2.1(b)(i)(A)-(D)4 (3d ed. 1999), and any "manifest injustice"

found in Wisconsin case law justifying plea withdrawal after

sentencing would permit plea withdrawal before sentencing.

¶138 In my view, the court should not permit a defendant to

withdraw a plea before sentencing unless the defendant is able

to prove a manifest injustice, provided that the defendant has

4
The grounds for manifest injustice in ABA Standards for
Criminal Justice——Pleas of Guilty § 14-2.1(b)(i)(E)-(F) (3d ed.
1999) are inapplicable under Wisconsin law.

12
No. 2011AP2733-CR.dtp

been accorded the rights and procedural protections in relation

to pleas that have been enshrined in our law. Our system should

always seek to promote the fair treatment of defendants, but it

should not be captive to manipulation by defendants.

III. LOPEZ'S PLEA WITHDRAWAL
¶139 The facts in this case undermine the claim of a fair

and just reason for the defendant to withdraw her pleas.

¶140 On October 2, 2008, the State issued a complaint

charging Lopez with 15 counts of various forms of child abuse.

Lopez waived the preliminary examination and was bound over for

trial.

¶141 The State filed an information and Lopez was arraigned

on November 3, 2008.

¶142 On July 24, 2009, the State amended the information so

that Lopez was charged with 22 counts of criminal conduct

related to her daughter.

¶143 On November 19, 2009, the defendant accepted a plea

bargain and entered pleas of no contest to six counts of the
information, namely, Counts 1, 8, 12, 15, 18, and 21. Counts 2,

3, 4, 5, 6, 7, 9, 10, 11, 13, 14, 16, 17, 19, 20, and 22 were

dismissed and read in, and one sentence enhancer was dismissed.

¶144 The court conducted multiple hearings following the

defendant's initial appearance. The court engaged interpreters

for all these hearings. The defendant was represented by three

attorneys——Taavi McMahon, Andrew Martinez, and Mark Maciolek——

all of whom spoke Spanish and all of whom sought to withdraw
from the case because of alleged dissatisfaction by the

13
No. 2011AP2733-CR.dtp

defendant.5 Attorney Maciolek represented Lopez from April 17,

2009, through her plea hearing on November 19, 2009, until March

23, 2010. In short, Attorney Maciolek represented Lopez for

seven months before Lopez entered a plea.

¶145 The defendant had more than a year to think about her

case prior to her plea. The court set a date for trial at a

scheduling hearing on August 13, 2009——three months before the

plea——and it informed the parties then that no further

continuances would be permitted. The defendant knew for two

months before her plea that the State would be able to use the

Safe Harbor videotapes of interviews with her daughter if the

case went to trial.

¶146 After Judge Stuart Schwartz retired on October 2,

2009, the Lopez case was assigned to Circuit Judge Stephen

Ehlke. The defendant promptly filed a motion for substitution.

When a new judge, Nicholas J. McNamara, was assigned, he denied

the defendant's motion for a 30-day extension. The defendant

suddenly pled the next day.
¶147 As noted above, Attorney Maciolek and the defendant

went over a four-page plea questionnaire in Spanish as well as

English. Lopez signed the document. She indicated that she was

33 years old, had 12 years of schooling, and had reviewed the

entire document with her attorney. She signed her name

immediately below the statement: "Pido al juez que acepte mi

5
Attorney Maciolek was not permitted to withdraw until well
after the plea.

14
No. 2011AP2733-CR.dtp

declaración y me declare culpable." (I am asking the court to

accept my plea and find me guilty).

¶148 At Lopez's plea hearing, Judge McNamara conducted a

textbook plea colloquy.6 He read the six counts to which she

pled, one at a time, and accepted the defendant's plea on each

charge, asking follow-up questions to ensure that the defendant

understood the implications of the pleas.

¶149 The defendant was responsive to the court's questions.

She once spoke up saying that she did not understand, and the

court rephrased the question. The defendant acknowledged that

she had gone over the Spanish language plea questionnaire with

her attorney. "[A]re you confident that you understood all of

the questions and the information contained on the plea

questionnaire and waiver of rights form?" the court asked.

"Yes, Your Honor," she replied.

¶150 Another time, the court asked: "Right now of course

you're receiving a translation. Are you satisfied with the

6
At a motion hearing May 10, 2010, Judge McNamara made the
following comment:

As counsel well knows I'm not only a relatively new
judge to the bench, but relatively new to the world of
criminal cases. And as such I can honestly say that
in such things as taking a plea, it's been my absolute
effort and intention to be very conscientious about
the sufficiency, the legality of the pleas that I've
taken. . . . I can say in all of the pleas that I've
taken since I've taken the bench, . . . I have never
intend[ed] to cut corners and go quickly . . . , and I
know . . . with every plea I've taken I've intended to
make sure that I was technically doing everything that
I was obligated to do to have a fair and sufficient
plea. Not just for the record, but really in fairness
to all the parties involved.

15
No. 2011AP2733-CR.dtp

translation that you are receiving?" "Yes, Your Honor," the

defendant replied.

¶151 There were other pertinent questions:

THE COURT: And have you entered your pleas today
freely and voluntarily?

THE DEFENDANT: Yes, Your Honor.

. . . .

THE COURT: And are you satisfied that this plea is
being made voluntarily, intelligently and with
understanding?

MR. MACIOLEK: I am.
¶152 Four months later, on March 19, 2010, the court

received a pro se motion from the defendant to withdraw her

pleas. She accused Attorney Maciolek of wantonly taking

advantage of her emotional distress, confusion, and

disorientation, and forcing her to accept pleas without

explanation. She claimed that her attorney never advised her to

reject pleas if she did not fully understand the charges and

penalties.

¶153 On May 10, 2010, almost six months after her pleas,

the defendant's fourth attorney filed a formal motion for plea

withdrawal. The motion claimed, in part:

1. That the defendant was unable to make a
knowing plea as a result of the failure of previous
counsel to fully explain the elements of the crime,
maximum penalties, and likely outcome of the plea;

2. That during the colloquy with [the] court,
the defendant was excessively compliant and overly
deferential to the court to the extent that her
answers were made out of respect and deference to the
court rather than actual understanding of the meaning
of the court's questions;
16
No. 2011AP2733-CR.dtp

3. That the defendant was rushed into making a
decision regarding the plea without adequate
opportunity to consult and confer with people in her
support network who had been supporting her and
advising her since the beginning of her incarceration;

. . . .

6. As a result of one or all of the above
assertions, the defendant's pleas were not
intelligent, knowing, or voluntary.
¶154 The majority opinion sums up the defendant's fair and

just reasons: "Lopez contended that her pleas were rushed, and

that she entered her pleas unknowingly due to her limited

English." Majority op., ¶3 n.2.

¶155 The defendant's contention that she did not understand

what she was doing when she entered the pleas disregards both

the length of time that passed between the initial charges and

the plea colloquy and the extensive efforts throughout to

accommodate the defendant's language deficiencies. If the court

interpreters, Spanish language forms, and Spanish-speaking

attorneys were insufficient, one wonders what more could have

been done and what sort of disturbing precedent would be set by

this case.

¶156 The claim that Lopez was "rushed" into making her

pleas may find superficial support in Judge McNamara's comment

that "of course all the parties know that this plea hearing came

very quickly"——namely, the day after a status conference.

However, the prosecutor, Corey Stephan, commented during the

plea hearing that "[w]e didn't think that there was ever going

to be a plea in this case."

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No. 2011AP2733-CR.dtp

¶157 In explaining to the court why the plea was in the

public interest, Stephan stated:

I don't think this is letting this defendant off easy.
I think that this is giving her an opportunity to
accept responsibility for the offense and I
think . . . any time a defendant asks for a plea
agreement, I think that we're to come in and make a
good faith effort to resolve the case and I will tell
you that this offer that we are presenting here today
is substantially the same offer that has been
available to her since the middle of the summer. It's
just that she now wishes to accept it, and there were
some minor detail changes that I don't think that we
need to get into here, but it's substantially the same
offer, nothing really changed, but she is now in a
place where she wishes to accept it and I think it's
in the best interest of the State and the child to
step forward and accept the offer on behalf of the
State and to re-extend our offer.

(Emphasis added.)
¶158 There is no evidence that the defendant's attorney

pressured her into entering a plea against her will, and the

circuit court so found. In all probability, Attorney Maciolek

counseled the defendant to reflect on the strength of the

State's evidence and the possibility that contrition and remorse
on her part would play better than defiance, blame-shifting, and

unwarranted claims that extreme child abuse was a "family matter

not criminal in nature." (See Defendant's Pro Se Motion filed

March 19, 2010.)

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No. 2011AP2733-CR.dtp

¶159 Finally, the motions to withdraw the defendant's pleas

were untimely under any reasonable standard.7

¶160 Judge McNamara determined that the defendant had

offered a fair and just reason for withdrawing her pleas,8 but he

concluded that plea withdrawal would be substantially

prejudicial to the State.

¶161 It would be hard for this court to conclude that Judge

McNamara's first determination was an erroneous exercise of

7
Judge McNamara noted that Lopez "certainly did not
expeditiously seek to withdraw her plea. She waited until the
trial and conviction and sentencing of her husband. She waited
until approximately ten days after the Court received the
presentence investigation report with a recommendation for a
sentence by the Department of Corrections."
8
Although Judge McNamara determined that Lopez established
a fair and just reason for withdrawing her pleas, he astutely
noted that a defendant's burden to establish a fair and just
reason is quite low:

The second aspect as to whether or not Ms. Lopez
has shown a fair or just reason to withdraw her plea
is a little trickier. I do believe that the law on
that is at times conflicting. As was noted by Mr.
Glinberg there needs to be something more than just a
desire to have a trial, at the same time all of the
cases really indicate that there just needs to be a
mere showing or adequate reason for the defendant's
change of heart. And it's clearly a relatively low
burden of proof for the defendant to show that she has
a fair and just reason to withdraw her plea. In the
various cases such as Shanks or Libke, the kinds of
things that would constitute a fair and just reason
for withdrawing the plea includes an assertion of
innocence, a genuine misunderstanding of the pleas'
consequences, and hasty entry of the plea, confusion
on the defendant's part, coercion by trial counsel,
and also whether the defendant sought to withdraw the
plea expeditiously or efficiently or relatively
quickly.

19
No. 2011AP2733-CR.dtp

discretion, given the current state of the law. However, Judge

McNamara, whose performance was absolutely superior, was trying

to apply law that no longer makes any sense.

¶162 That is why the fair and just reason rule must be

reconsidered.

¶163 For the foregoing reasons, I respectfully concur.

¶164 I am authorized to state that Justice MICHAEL J.

GABLEMAN joins this concurrence.

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No. 2011AP2733-CR.ssa

¶165 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I join

Justice Bradley's dissent.

¶166 I write separately to put into perspective Justice

Prosser's concurrence on the continued use of the "fair and just

reason" standard for withdrawal of a guilty plea prior to

sentencing. The concurrence asserts that it is inconsistent to

impose stringent plea colloquy requirements on circuit courts to

ensure knowing, intelligent, and voluntary guilty pleas and to

apply simultaneously the "fair and just reason" standard to

allow withdrawal of a guilty plea prior to sentencing.

Concurrence, ¶121.

¶167 This issue has not been addressed by the parties.

¶168 The concurrence's comments on the "fair and just

reason" standard, in my opinion, should be read in the following

contexts:

(A) National and state authorities proposing criminal

procedure rules and standards have simultaneously

recognized refinements to guilty plea colloquy requirements
while retaining the "fair and just reason" standard for

withdrawal of a guilty plea prior to sentencing;

(B) The policies favoring the "fair and just reason"

standard for withdrawal of guilty pleas prior to sentencing

remain salient;

standard has evolved to meet the changing criminal

procedure landscape;

1
No. 2011AP2733-CR.ssa

(D) The "fair and just reason" standard supplements

the defendant's remedies for arguably deficient plea

colloquies under State v. Bangert, 131 Wis. 2d 246, 389

N.W.2d 12 (1986); and

(E) The concurrence advocates the manifest injustice

standard to replace the "fair and just reason" standard for

guilty plea withdrawal, despite the concurring justice's

criticism of the "manifest injustice" standard as unclear

and difficult.1

¶169 Much of the concurrence's reasoning for rejecting the

"fair and just reason" standard rests upon the notion that there

has been a sea change in the requirements for the colloquy

before a circuit court accepts a plea of guilty since Wisconsin

adopted the "fair and just reason" standard based on the ABA's

1967 standards.2 Concurrence, ¶123.

¶170 I agree that this court should be open to reexamining

case law to conform to changes in the law.
¶171 Yet entities that propose and codify rules of criminal

procedure continue to urge use of the "fair and just reason"

standard. See, for example, the American Bar Association's 1999

1
State v. Taylor, 2013 WI 34, ¶71, 347 Wis. 2d 30, 829
N.W.2d 482 (Prosser, J., concurring).
2
American Bar Association Project on Standards for Criminal
Justice, Standards Relating to Pleas of Guilty § 2.1(b)
(Approved Draft 1968); Libke v. State, 60 Wis. 2d 121, 128-29,
208 N.W.2d 331 (1973) (rejecting the manifest injustice standard
in favor of the "fair and just reason" standard based on the
1967 ABA standards).

2
No. 2011AP2733-CR.ssa

revised criminal justice standards,3 the Federal Rules of

Criminal Procedure,4 the Uniform Rules of Criminal Procedure,5

and the Wisconsin Judicial Council's most recent proposed

revisions to criminal procedure.

¶172 The ABA reaffirmed its commitment to the "fair and

just reason" standard when it revised its criminal justice

standards in 1999.6 This comprehensive reworking of the ABA's

criminal justice standards incorporated changes in criminal

procedure since 1967, including increased protections for

defendants at guilty plea colloquies.7 Nonetheless, the ABA

continues to use the "fair and just reason" standard, noting

that "[t]his test frequently has been applied to presentence

plea withdrawal motions in the federal courts and in many state

courts."8

3
ABA Standards for Criminal Justice: Pleas of Guilty (3d
ed. 1999).
4
Fed. R. Crim. P. 11(d)(2).
5
Unif. R. Crim. P. 444(g), 10 U.L.A. 123 (1987).
6
ABA Standards for Criminal Justice: Pleas of Guilty Std.
14-2.1 (3d ed. 1999) ("After entry of a plea of guilty or nolo
contendere and before sentence, the court should allow the
defendant to withdraw the plea for any fair and just reason.").
7
See, e.g., ABA Standards for Criminal Justice: Pleas of
Guilty Std. 14-1.4 at 35-39 (3d ed. 1999) (historical note and
commentary) (requiring that defendants understand not only the
nature and elements of the offense, but also the "terms and
conditions of any plea agreement").
8
See, e.g., ABA Standards for Criminal Justice: Pleas of
Guilty Std. 14-2.1 at 85-86 (3d ed. 1999) (historical note and
commentary).

3
No. 2011AP2733-CR.ssa

¶173 The most recent version of the Federal Rules of

Criminal Procedure sets forth numerous requirements for a plea

colloquy prior to court acceptance of a guilty plea,9 while

9
Federal Rule of Criminal Procedure 11(b) states:

(b) Considering and Accepting a Guilty or Nolo
Contendere Plea.

(1) Advising and Questioning the Defendant.
Before the court accepts a plea of guilty or nolo
contendere, the defendant may be placed under
oath, and the court must address the defendant
personally in open court. During this address,
the court must inform the defendant of, and
determine that the defendant understands, the
following:

(A) the government's right, in a prosecution for
perjury or false statement, to use against the
defendant any statement that the defendant gives
under oath;

(B) the right to plead not guilty, or having
already so pleaded, to persist in that plea;

(D) the right to be represented by counsel——and
if necessary have the court appoint counsel——at
trial and at every other stage of the proceeding;

(E) the right at trial to confront and cross-
examine adverse witnesses, to be protected from
compelled self-incrimination, to testify and
present evidence, and to compel the attendance of
witnesses;

(F) the defendant's waiver of these trial rights
if the court accepts a plea of guilty or nolo
contendere;

(G) the nature of each charge to which the
defendant is pleading;

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No. 2011AP2733-CR.ssa

continuing to affirm a commitment to the "fair and just reason"

standard. Federal Rule 11(d)(2)(B) states: "A defendant may

withdraw a plea of guilty or nolo contendere . . . after the

court accepts the plea, but before it imposes sentence

(H) any maximum possible penalty, including
imprisonment, fine, and term of supervised
release;

(I) any mandatory minimum penalty;

(J) any applicable forfeiture;

(K) the court's authority to order restitution;

(L) the court's obligation to impose a special
assessment;

(M) in determining a sentence, the court's
obligation to calculate the applicable
sentencing-guideline range and to consider that
range, possible departures under the Sentencing
Guidelines, and other sentencing factors under 18
U.S.C. § 3553(a);

(N) the terms of any plea-agreement provision
waiving the right to appeal or to collaterally
attack the sentence; and

(O) that, if convicted, a defendant who is not a
United States citizen may be removed from the
United States, denied citizenship, and denied
admission to the United States in the future.

(2) Ensuring That a Plea Is Voluntary. Before
accepting a plea of guilty or nolo contendere, the
court must address the defendant personally in open
court and determine that the plea is voluntary and did
not result from force, threats, or promises (other
than promises in a plea agreement).

(3) Determining the Factual Basis for a Plea. Before
entering judgment on a guilty plea, the court must
determine that there is a factual basis for the plea.

5
No. 2011AP2733-CR.ssa

if . . . the defendant can show a fair and just reason for

requesting the withdrawal."

¶174 The Uniform Rules of Criminal Procedure also use the

"fair and just reason" standard,10 despite extensive plea

colloquy requirements similar to those in the ABA standards and

the federal rules.11

¶175 The Wisconsin Judicial Council, which for over ten

years has considered changes to criminal procedure, has recently

proposed a bill that imposes the "fair and just reason" standard

for plea withdrawal prior to sentencing, with a remedy that

restores both the State and the defendant to the positions they

were in prior to the plea.12

10
Unif. R. Crim. P. 444 (g), 10 U.L.A. 123 (1987).
11
Unif. R. Crim. P. 444(c), 10 U.L.A. 120-21 (1987).
12
2013 Wis. Assembly Bill 383, § 732, reads in relevant
part:

SECTION 732. 971.093 of the statutes is created to
read:

971.093 Withdrawal of a plea of guilty or no contest.

(1) BEFORE SENTENCING. The court shall grant a
motion that is made before sentencing to withdraw a
plea of guilty or no contest if a fair and just reason
for doing so is established.

. . . .

(3) REMEDY. When the court grants a motion to
withdraw a plea of guilty or no contest under this
section, the judgment of conviction is vacated, the
original charge or charges reinstated, and the parties
are restored to the position they were in before the
plea and any related plea agreement was accepted.

6
No. 2011AP2733-CR.ssa

¶176 Thus, it appears that the entities and organizations

that propose and codify new criminal procedure standards have

not taken the concurrence's suggestion to reject the "fair and

just reason" standard. On the contrary, they have repeatedly

affirmed the "fair and just reason" standard for withdrawal of

guilty pleas prior to sentencing.

¶177 Important policy rationales underlie the continued

application of the "fair and just reason" standard for guilty

plea withdrawal prior to sentencing: (1) judicial efficiency in

reducing appeals; and (2) fairness to the defendant. These

rationales have not been undermined by more rigorous plea

colloquy requirements.

¶178 As the concurrence rightly notes, any standard must

"formulate procedures which will maximize the benefits of

conviction without trial and minimize the risks of unfair or

inaccurate results." Concurrence, ¶122 (quoting American Bar

Association Project on Minimum Standards for Criminal Justice——
Pleas of Guilty 5 (Tentative Draft, Feb. 1967)).

¶179 Regarding the rationale of judicial efficiency, courts

have noted that "[t]he liberal rule for withdrawal of a guilty

plea before sentence is consistent with the efficient

administration of criminal justice":13

• It reduces the number of appeals contesting the
'knowing and voluntariness' of a guilty plea.

13
United States v. Young, 424 F.2d 1276, 1279 (3d Cir.
1970).

7
No. 2011AP2733-CR.ssa

• It avoids the difficulties of disentangling such
claims.14
¶180 Regarding the rationale of fairness to the defendant,

the 1999 ABA commentary to its use of the "fair and just reason"

standard for withdrawal of a guilty plea prior to sentencing

explains that the standard balances the goals of maximizing the

benefits of conviction without trial while minimizing the risks

of unfairness as follows:

• The conviction is not yet final.

• The court has not taken the time to weigh an
appropriate sentence.

• No appeal from the judgment is possible.

• If the defendant has second thoughts before
sentencing about having pleaded guilty, this fact
may suggest that the plea was entered without
sufficient understanding and contemplation.

• Given the considerable care pursuant to which
pleas are required to be taken, it is difficult
to justify allowing a defendant to withdraw a
plea without any reason at all.15
¶181 The ABA's reasoning for using a "fair and just reason"

standard is spot-on, even if plea colloquies now better ensure

knowing, intelligent, and voluntary guilty pleas.
¶182 Additionally, courts have persuasively explained a

distinction between the policy for a "fair and just reason"

standard for guilty plea withdrawal prior to sentencing and the

14
These bullet points are stylized from Young, 424 F.2d at
1279.
15
These bullet points are stylized from ABA Standards for
Criminal Justice: Pleas of Guilty Std. 14-2.1 at 85
(commentary) (3d ed. 1999).

8
No. 2011AP2733-CR.ssa

policy for a more stringent standard after sentencing. State v.

Olish, 266 S.E.2d 134 (W. Va. 1980), summarizes three reasons

for applying a more stringent standard for post-sentencing plea

withdrawal:

• First, once sentence is imposed, the defendant is
more likely to view the plea bargain as a
tactical mistake and therefore wish to have it
set aside.

• Second, at the time the sentence is imposed,
other portions of the plea bargain agreement will
often be performed by the prosecutor, such as the
dismissal of additional charges or the return or
destruction of physical evidence, all of which
may be difficult to undo if the defendant later
attacks his guilty plea.

• Finally, a higher post-sentence standard for
withdrawal is required by the settled policy of
giving finality to criminal sentences which
result from a voluntary and properly counseled
guilty plea.16
¶183 The Olish court's reasoning matches up with the

reasoning in our case law justifying the "fair and just reason"

standard for guilty plea withdrawal prior to sentencing and the

more stringent standard for guilty plea withdrawal after

sentencing. Our court has stated that a more stringent post-
sentence standard "reflects the State's interest in the finality

of convictions, and reflects the fact that the presumption of

innocence no longer exists." State v. Taylor, 2013 WI 34, ¶48,

16
These bullet points are stylized from the Olish case.
State v. Olish, 266 S.E.2d 134, 136 (W. Va. 1980).

9
No. 2011AP2733-CR.ssa

347 Wis. 2d 30, 62, 829 N.W.2d 482 (internal quotation marks and

quoted source omitted).17

¶184 In trying to support its position that increased

protection for defendants during plea colloquies renders

unnecessary the "fair and just reason" standard for plea

withdrawal prior to sentencing, the concurrence quotes 5 Wayne

R. LaFave et al., Criminal Procedure § 21.5(a), at 868 (3d ed.

2007). Concurrence, ¶123 n.3. It is not clear why the

concurrence refers to Professor LaFave. LaFave does not support

the concurrence's position that the "fair and just reason"

standard should now be discarded.

¶185 The concurrence correctly notes in its footnote 3,

however, that LaFave explains that the shift in federal cases is

towards a "fair and just reason" for plea withdrawal and away

from an earlier view that only prejudice was at issue.

¶186 LaFave documents the gradual transition from the view

espoused in United States v. Savage, 561 F.2d 554, 557 (4th Cir.

1977), that no "fair and just reason" is needed and a defendant
should be allowed to withdraw a guilty plea absent prejudice,

towards a more restrictive view that there is "no occasion to

17
See also State v. Nawrocke, 193 Wis. 2d 373, 379-80, 534
N.W.2d 624 (Wis. App. 1995) (citing Olish, 266 S.E.2d at 136,
for the policy reasons distinguishing the "fair and just reason"
standard for guilty plea withdrawal prior to sentencing and the
"manifest injustice" standard for guilty plea withdrawal after
sentencing); 5 Wayne R. LaFave et al., Criminal Procedure
§ 21.5(a) (3d ed. 2007) (same). Cf. State v. Handy, 391
S.E.2d 159, 161 (N.C. 1990) (same).

10
No. 2011AP2733-CR.ssa

inquire into the matter of prejudice unless the defendant first

shows a good reason for being allowed to withdraw his plea."18

¶187 There is no shift by LaFave or in federal and state

law away from the "fair and just reason" standard.

¶188 In fact, LaFave explicitly supports the "fair and just

reason" standard for presentencing guilty plea withdrawal even

in the face of plea colloquy requirements. Adopting the

reasoning of the Olish case discussed above, LaFave writes:

"The prevailing approach of utilizing a more demanding standard

after imposition of sentence than when the motion comes before

sentencing is sound."19

¶189 LaFave concludes that the rules governing withdrawal

of a guilty plea prior to sentencing on the ground that the plea

colloquy was defective do not supplant the "fair and just

reason" standard. LaFave states: "[I]t is erroneous for a

court to conclude 'that a defendant's reason for seeking to

withdraw his plea is not "fair and just" unless the reason

renders the plea invalid.'"20
¶190 The concurrence is not persuasive in abandoning the

well-reasoned rationales (in Olish and LaFave, for example) for

using a "fair and just reason" standard for withdrawal of a

guilty plea prior to sentencing in the present era of more

rigorous plea colloquies.

18
5 LaFave et al., supra note 17, § 21.5(a) at 868.
19
Id. § 21.5(a), at 867.
20
Id. § 21.5(a), at 871-72 (quoting United States v.
Ortega-Ascanio, 376 F.3d 879 (9th Cir. 2004)).

11
No. 2011AP2733-CR.ssa

¶191 Adherence to the "fair and just reason" standard is of

long standing in Wisconsin law, see Libke v. State, 60

Wis. 2d 121, 128, 208 N.W.2d 331 (1973). Instead of rejecting

the standard, the court has continuously applied it. Indeed, as

recently as last year, Justice Prosser wrote that "[w]hen a

defendant moves to withdraw his plea before sentencing, the

circuit court should freely allow the withdrawal if the

defendant supplies any 'fair and just reason' unless withdrawal

would substantially prejudice the prosecution." State v.

Taylor, 2013 WI 34, ¶62, 347 Wis. 2d 30, 829 N.W.2d 482

(Prosser, J., concurring) (citing State v. Cain, 2012 WI 68,

¶24, 342 Wis. 2d 1, 816 N.W.2d 177).

¶192 Our case law over the years has developed the contours

of the "fair and just reason" standard.

¶193 The concurrence erroneously treats the "fair and just

reason" standard as so low a bar that the circuit courts become

"captive to manipulation by defendants." Concurrence, ¶31. Yet
in practice, the "fair and just reason" standard is far from an

automatic pass for defendants. "Despite the language of this

standard that suggests a low burden for plea withdrawal before

sentencing, the Wisconsin Supreme Court has noted the difficulty

that defendants encounter in practice."21

21
9 Christine M. Wiseman & Michael Tobin, Wisconsin
Practice Series: Criminal Practice & Procedure § 23:31, at 941-
42 (2d ed. 2008) (footnotes omitted) (citing State v. Jenkins,
2007 WI 96, ¶43, 303 Wis. 2d 157, 736 N.W.2d 24).

12
No. 2011AP2733-CR.ssa

¶194 For example, in State v. Canedy, 161 Wis. 2d 565, 469

N.W.2d 163 (1991), this court explicitly rejected the approach

of some courts that "determined that any desire to withdraw the

plea before sentence is 'fair and just' as long as the

prosecution would not be prejudiced." Canedy, 161 Wis. 2d at

583. Canedy noted that Wisconsin law requires "something other

than the desire to have a trial"; the defendant has the burden

to prove a fair and just reason for withdrawal of a guilty plea

by a preponderance of the evidence. Canedy, 161 Wis. 2d at 583-

84.

¶195 In Canedy, the defendant alleged that he misunderstood

the meaning of "depraved mind" and the consequences of his

guilty plea, even though he entered the guilty plea after a

colloquy explaining the "depraved mind" element of the crime.

An appellate court uses the "erroneous exercise of discretion"

standard for reviewing a circuit court's grant or denial of a

defendant's motion to withdraw a guilty plea under the "fair and

just reason" standard. Because the circuit court found the
defendant's allegations not credible by a preponderance of the

evidence, this court held that denial of the defendant's motion

to withdraw his plea was not an erroneous exercise of

discretion. See also State v. Kivioja, 225 Wis. 2d 271, 288-89,

592 N.W.2d 220 (1999) (holding that a "fair and just reason"

must be "credible" and "plausible" and deferring to the circuit

court's finding of credibility).

¶196 The court also recognized the "fair and just reason"
standard as a bar to withdrawal of a guilty plea in State v.

13
No. 2011AP2733-CR.ssa

Jenkins, 2007 WI 96, 303 Wis. 2d 157, 736 N.W.2d 24, noting that

a defendant must meet two standards prior to demonstrating a

"fair and just reason":

First, the defendant must proffer a fair and just
reason for withdrawing his plea. Not every reason
will qualify as a fair and just reason. Second, the
defendant must proffer a fair and just reason that the
circuit court finds credible. In other words, the
circuit court must believe that the defendant's
proffered reason actually exists.
State v. Jenkins, 303 Wis. 2d 157, ¶43 (citations omitted)

(citing Canedy).

¶197 In Jenkins, the defendant's allegations of

misunderstanding were rejected as failing these requirements.22

The Jenkins court stated: "As long as circuit courts follow the

court mandated and statutory requirements during plea

colloquies, defendants will ordinarily have difficulty showing a

fair and just reason for plea withdrawal if the reason is based

on grounds that were adequately addressed in the plea colloquy."

Jenkins, 303 Wis. 2d 157, ¶60.

¶198 Although the concurrence implies that the "fair and
just reason" standard is no meaningful bar to plea withdrawal, I

can find no Wisconsin Supreme Court case reversing a circuit

22
State v. Jenkins, 2007 WI 96, ¶88, 303 Wis. 2d 157, 736
N.W.2d 24.

14
No. 2011AP2733-CR.ssa

court's denial of a defendant's motion to withdraw a guilty plea

prior to sentencing since Libke.23

¶199 Contrary to the concurrence's concerns, our case law

has conformed the "fair and just reason" to our contemporary

criminal procedure requirements for guilty plea colloquies.

¶200 The concurrence implies that defendants wishing to

withdraw their guilty pleas prior to sentencing can use State v.

Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), which enumerates

guilty plea colloquy requirements, as a replacement for the

"fair and just reason" standard. Concurrence, ¶136.

¶201 Yet the concurrence fails to note that the court has

made it increasingly difficult to get a Bangert hearing, at

23
See, e.g., State v. Bollig, 2000 WI 6, 232 Wis. 2d 561,
605 N.W.2d 199 (upholding the circuit court where it denied the
defendant's motion for a new trial because of substantial
prejudice to the State, even though the circuit court initially
denied the motion on grounds that the defendant did not allege a
"fair and just reason"); State v. Kivioja, 225 Wis. 2d 271, 592
N.W.2d 220 (1999) (holding that even though the circuit court
applied the incorrect "manifest injustice" standard for guilty
plea withdrawal prior to sentencing, the circuit court's denial
of the defendant's motion to withdraw his guilty plea should not
be reversed as an erroneous exercise of discretion when the new
evidence admitted was deemed unreliable and therefore was not a
"fair and just reason" for guilty plea withdrawal); State v.
Garcia, 192 Wis. 2d 845, 863, 532 N.W.2d 111 (1995) (holding
that the circuit court did not erroneously exercise its
discretion in denying the defendant's motion to withdraw the
guilty plea, deeming the defendant's reason to be incredible);
Dudrey v. State, 74 Wis. 2d 480, 485, 247 N.W.2d 105 (1976)
(requiring evidence "that the misunderstanding actually
existed"); State v. McKnight, 65 Wis. 2d 582, 223 N.W.2d 550
(1974) (holding that the defendant's allegations were incredible
because the defendant acknowledged how much time he had spent
deliberating over his plea change).

15
No. 2011AP2733-CR.ssa

which the defendant can show that he or she did not knowingly,

intelligently, and voluntarily enter a guilty plea. Thus,

Bangert cannot function as a replacement for the "fair and just

reason" standard.

¶202 Bangert sets out two requirements that a defendant

must fulfill to get an evidentiary hearing to demonstrate that

the plea was not knowingly, intelligently, or voluntarily made:

A Bangert motion warrants an evidentiary hearing if
(1) the motion makes "a prima facie showing that [the]
plea was accepted without the trial court's
conformance with [Wis. Stat.] § 971.08 or other
mandatory procedures," and if (2) the motion alleges
that in fact the defendant did not know or understand
the information that should have been provided at the
plea colloquy.
State v. Howell, 2007 WI 75, ¶26, 301 Wis. 2d 350, 734 N.W.2d 48

(quoting Bangert, 131 Wis. 2d at 274) (footnotes omitted).

¶203 In recent years, however, this court has made this

hearing increasingly difficult to get, even though a prima facie

showing of a Bangert violation should be relatively easy to

allege.24

¶204 In State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829

N.W.2d 482, the defendant was denied a Bangert hearing, despite

meeting all the requirements set forth in Bangert and subsequent

24
"The requirements for a Bangert motion are relatively
relaxed because the source of the defendant's misunderstanding,
the plea colloquy defect, should be clear from the transcript of
the hearing at which the plea was taken. We require less from
the allegations in a Bangert motion because the circuit court
bears the responsibility of preventing failures in the plea
colloquy." State v. Howell, 301 Wis. 2d 350, ¶28.

16
No. 2011AP2733-CR.ssa

cases.25 Taylor states that when a defendant shows an

"insubstantial defect" in the plea colloquy, a Bangert

evidentiary hearing is unnecessary. Taylor, 347 Wis. 2d 30,

¶39.

¶205 The increased barriers to defendants to get a Bangert

hearing make the value of a "fair and just reason" standard for

presentencing guilty plea withdrawal more important, contrary to

the concurrence's assertions. A defect that might not meet the

current standard for getting a Bangert hearing might still be a

"fair and just reason" justifying a guilty plea withdrawal prior

to sentencing. Put differently, Bangert does not provide a

sufficient safety net.

¶206 Similarly, in State v. Negrete, 2012 WI 92, 343

Wis. 2d 1, 819 N.W.2d 749, the court simply opted not to apply

Bangert at all. Negrete, 343 Wis. 2d 1, ¶3. Negrete held that

when the defendant failed to make "'a pointed showing' of an

error in the plea colloquy by reference to the plea colloquy

transcript," Negrete, 343 Wis. 2d 1, ¶20 (quoted source
omitted), the Bangert test did not apply. Negrete, like many

cases involving Bangert, involved a defendant's motion to

withdraw a guilty plea after sentencing.

¶207 Although the defendant in Negrete asserted that the

circuit court failed to inform him of collateral consequences of

his plea during the colloquy, the court held that the

defendant's "equivocal" affidavit in support of his Bangert

25
State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716
N.W.2d 906; State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786
N.W.2d 64.

17
No. 2011AP2733-CR.ssa

motion did not demonstrate a "pointed showing of an error."

Negrete, 343 Wis. 2d 1, ¶¶6, 20. The bar to get a hearing was

set high; indeed the defendant in Negrete did not get a Bangert

hearing. But the defendant might have made a sufficient showing

of a "fair and just reason" to withdraw the guilty plea, had the

defendant made his plea withdrawal motion prior to sentencing.

¶208 Thus, although Bangert provides substantial

protections for defendants at plea colloquies, such protections,

as LaFave explains, do not usurp all potential fair and just

reasons for withdrawing a guilty plea prior to sentencing. The

court's recently imposed limitations on Bangert illustrate the

necessity of retaining the "fair and just reason" standard for

withdrawal of guilty pleas prior to sentencing.

¶209 The concurrence asserts that "the court should not

permit a defendant to withdraw a plea before sentencing unless

the defendant is able to prove a manifest injustice, provided

that the defendant has been accorded the rights and procedural
protections in relation to pleas that have been enshrined in our

law." Concurrence, ¶138 (emphasis added).

¶210 In Taylor, Justice Prosser urged the court "to

carefully update the 'manifest injustice' test, with a

comprehensive catalog of fact situations requiring withdrawal,

when a defendant satisfies his burden of proof, along with

citations supporting these situations." Taylor, 347 Wis. 2d 30,

¶71 (Prosser, J., concurring).

18
No. 2011AP2733-CR.ssa

¶211 Justice Prosser's concurrence in the instant case

seeks to replace the "fair and just reason" standard, which it

perceives as unclear and difficult, with the "manifest

injustice" standard, which Justice Prosser has already noted is

unclear and difficult.

¶212 In sum, I join Justice Bradley's dissent and write

separately to put Justice Prosser's concurrence in perspective.

19
No. 2011AP2733.awb

¶213 ANN WALSH BRADLEY, J. (dissenting). The majority

opinion ultimately concludes that because the videotapes would

no longer be admissible under Wis. Stat. § 908.08, the State

would be substantially prejudiced if Lopez were allowed to

withdraw her pleas. It maintains that without the videotapes

the State would be left with a less compelling presentation of

evidence due to A.O.'s loss of memory.

¶214 Its analysis, however, fails to address the argument

that there was no evidence in the record supporting the circuit

court's speculation or belief that A.O. suffered from memory

loss. It further ignores the strong evidence against Lopez,

which may still include the recordings or substantial portions

of them admitted under other evidentiary rules. In essence, the

majority fails to give any meaning to the word "substantial."

¶215 I am mindful of the appalling facts of this case.

Nevertheless, I determine, as did the court of appeals, that

neither the record nor the law supports a conclusion of

substantial prejudice here. Accordingly, I respectfully
dissent.

¶216 At the outset the majority correctly states the

standard for plea withdrawal: "a circuit court should 'freely

allow a defendant to withdraw his plea prior to sentencing for

any fair and just reasons, unless the prosecution [would] be

substantially prejudiced.'" Majority op., ¶2 (citations

omitted).

1
No. 2011AP2733.awb

¶217 It acknowledges that the State has conceded that Lopez

presented a fair and just reason for withdrawing her pleas.

Majority op., ¶3. Accordingly, it announces what is the

essential issue in this case: "our analysis in this case focuses

on whether the circuit court erroneously exercised its

discretion in concluding that the State would be substantially

prejudiced if Lopez were allowed to withdraw her pleas." Id. It

follows the announcement by listing the defendant's arguments.

Majority op., ¶4. Among them is Lopez's argument that "the

State failed to demonstrate that the case against Lopez would be

more difficult to prove." Id.

¶218 The majority later characterizes this argument as

"whether the State might still be able to prove guilt beyond a

reasonable doubt." Majority op., ¶86. It determines that this

is not the test for substantial prejudice and proceeds to set

forth its own somewhat circuitous test for substantial

prejudice. It explains that the test for substantial prejudice

is "whether the State would be substantially prejudiced if Lopez
were allowed to withdraw her pleas." Id.

¶219 In reaching its conclusion that there was substantial

prejudice in this case, the majority quotes the circuit court's

findings that the tapes were "compelling" and "credible," its

belief that due to the passage of time there would be a "risk"

that A.O. would not be able to reproduce the testimony she gave

on the tapes, and its "hope" that with therapy some of the

2
No. 2011AP2733.awb

things A.O. has forgotten. Majority op., ¶¶91-95.1 Ultimately,

the majority determines that the State would be substantially

prejudiced here because "[w]ithout admitting the recordings as

envisioned under § 908.08, the State was left with a completely

different and less compelling presentation of its evidence."

Id., ¶98.

¶220 I begin by considering the purported evidence and case

law that forms the basis of the majority's conclusion and

examine them in light of Lopez's arguments. First, Lopez argues

that the State has failed to show substantial prejudice because

it offered no evidence that the victim is unable to testify or

that the victim's memory has faded. Second, she contends that

there is no showing of substantial prejudice because there

remains significant evidence against her, including alternative

grounds for the admission of significant portions of the video

recordings. I address each in turn.

A.
¶221 Absent from the majority's analysis is any evidence of

record that would support its speculative conclusion that the

State would be substantially prejudiced due to A.O.'s memory

loss. It asserts that she would be unable to convey the same

1
The majority also suggests that Lopez intentionally waited
until after receiving the presentence investigation ("PSI")
report to withdraw her plea and included such "dilatory" conduct
in its discussion of prejudice. Majority op., ¶¶81-82. This
suggestion is not supported by the record as the record
indicates that Lopez had not received a copy of the PSI report
prior to submitting her motion to withdraw her pleas.

3
No. 2011AP2733.awb

message as the video recordings due to the passage of time and

her therapy.

¶222 I agree with the majority that a circuit court's

decision to grant or deny a plea withdrawal is entitled to

deference. However, that does not mean that we simply accept

the circuit court's determination. This court conducts a review

which looks at whether the determination was "made and based

upon the facts appearing in the record and in reliance on the

appropriate or applicable law." State v. Jenkins, 2007 WI 96,

¶30, 303 Wis. 2d 157, 736 N.W.2d 24 (quoting State v. Canedy,

161 Wis. 2d 565, 579, 469 N.W.2d 163 (1991)); see also State v.

Bollig, 2000 WI 6, ¶41, 232 Wis. 2d 561, 605 N.W.2d 199.

¶223 Here, there are no facts in the record indicating that

A.O.'s memory has faded. The circuit court's belief or "hope"

that A.O. has forgotten is not the same thing as a finding based

on evidence that she has forgotten or her memory has faded.

Rather than relying on evidence, both the circuit court and the

majority rest on the circuit court's speculation, belief, and
hope about A.O.'s therapy to conclude that she may have

difficulty recalling details of what happened.

¶224 In the absence of any evidence of record, the majority

relies instead on two plea withdrawal cases, Bollig and State v.

Rushing, 2007 WI App 227, 305 Wis. 2d 739, 740 N.W.2d 894. I

find its reliance misplaced. The majority fails to acknowledge

the significant distinguishing factor in those cases. Both

cases involved significantly younger victims. Bollig, 232 Wis.
2d 561, ¶¶43-46 (victim was four-and-a-half years old at the

4
No. 2011AP2733.awb

time of the assault, and a motion for plea withdrawal occurred

two years later); Rushing, 305 Wis. 2d 739, ¶¶2, 7 (victim was

five years old at the time of the assault and defendant moved to

withdraw his plea two years later). Although it may be a

reasonable inference that a four- or five-year-old victim's

memory would be affected by the passage of two years, that

inference is much more tenuous when applied to the victim here,

who was 14 years old at the time of the incidents.

¶225 In both cases there were facts of record in addition

to the passage of time that supported a conclusion of

substantial prejudice. In Rushing, the assistant district

attorney entered an affidavit indicating that the victim's

memory of the event had changed. 305 Wis. 2d 739, ¶8. In

addition, the child's videotaped statement indicated that he

"appeared to be very reluctant, very hard to interview, very

hyperactive, very unwilling to engage in the facts and

circumstances in an -- any substantial way." Id., ¶9.

¶226 In Bollig, this court likewise stressed facts of
record, noting that it would be improper for the circuit court

to rely on "personal assumptions." 232 Wis. 2d 561, ¶46.

Relying on "the facts of the record, as well as the recognition

of the effects of protracted criminal proceedings on the

victim's memory" this court agreed that there was substantial

prejudice. Id.

¶227 Here, the majority does not point to facts of record

to support the circuit court's conclusion of substantial

5
No. 2011AP2733.awb

prejudice. The absence of such evidence from the majority's

discussion undermines its analysis.

¶228 Mere passage of time does not support the conclusion

of substantial prejudice due to loss of memory. Neither do

speculation, belief, and hope support such a conclusion.

Rather, it must be based on evidence of record. Contrary to the

majority, I would conclude that the circuit court erroneously

exercised its discretion when it determined, without evidence of

record, that A.O. suffered from memory loss and would be unable

to present substantially the same information as provided in the

video recordings.

¶229 I turn next to Lopez's second argument, that the State

failed to prove that it was substantially prejudiced because

there was still significant evidence against her.

¶230 Missing from the majority's analysis is a meaningful

discussion of what constitutes substantial prejudice and our

relevant precedent that would inform such a discussion.
¶231 The majority's analysis of this issue consists

primarily of its determination that the test for substantial

prejudice is not "whether the State might still be able to prove

guilt beyond a reasonable doubt without admitting the

audiovisual recordings," rather, "[t]he test is whether the

State would be substantially prejudiced if Lopez were allowed to

withdraw her pleas." Majority op., ¶86. However, if the State

can still prove its case beyond a reasonable doubt, it is
unclear how the State would be substantially prejudiced. The

6
No. 2011AP2733.awb

majority's discussion does not indicate what State interest

would be prejudiced and fails to clearly define substantial

prejudice. Fashioning a circuitous test (the test for

substantial prejudice is whether the State was substantially

prejudiced) provides little illumination on the subject.

¶232 An examination of State v. Nelson, 2005 WI App 113,

282 Wis. 2d 502, 701 N.W.2d 32, would assist the majority in

shedding light on what constitutes substantial prejudice. In

that case, the circuit court had denied the defendant's motion

to withdraw his plea because it determined that the State would

be prejudiced as it had lost track of the victim. Id., ¶6. The

court of appeals, however, determined that this was error

because "the trial court failed to consider the strength of the

State's case against Nelson." Id., ¶20.

¶233 After noting that little case law touches upon the

issue of substantial prejudice, the Nelson court relied upon a

dictionary definition of "substantial." Id., ¶17. ("The

dictionary definition of 'substantial' includes the words
'important' and 'essential.' See Webster's Third New

International Dictionary 2280 (1993)"). Noting that there was

DNA evidence and that the defendant had confessed to the crimes,

the court determined that even without the victim's testimony

the evidence would be sufficient to find the defendant guilty

beyond a reasonable doubt. Id., ¶21. Accordingly, the court

concluded that although the State "may have been somewhat

inconvenienced by the withdrawal," it had failed to establish
substantial prejudice. Id., ¶22.

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¶234 It is difficult to reconcile the majority's decision

today with Nelson. Here, Lopez admitted much of the abuse in an

interview with a detective the day after A.O. was rescued from

her home. Lopez also admitted the abuse in another interview

shortly after entering her plea. She admitted the abuse again

when she testified at Olivas' trial. In addition to these

statements, there are photographs of A.O.'s injuries and

detailed medical reports. Indeed, the circuit court

acknowledged that "the wounds on [A.O.]'s body alone speak to

the reality of what she went through. Even if she had been

killed and she had no voice left to explain what harm [Lopez]

had done to her, the wounds on her body would still tell us."

Further, there is no indication in the record that A.O. would be

unable to reproduce her statements about the abuse.

¶235 As in Nelson, even absent the audiovisual recordings

of A.O.'s statements, there is significant evidence against

Lopez. Thus, it seems that any inconvenience or prejudice that

the State may incur by not being able to admit the recordings
under Wis. Stat. § 908.08 does not rise to the level of

substantial prejudice. By concluding otherwise, the majority

ignores the fact that a circuit court must find more than mere

prejudice in order to deny a motion to withdraw a plea, it must

find substantial prejudice.

¶236 In furtherance of her argument that the State was not

substantially prejudiced, Lopez advances that portions of the
tapes could still be shown even though admissibility under Wis.

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Stat. § 908.08 is no longer available. Yet, the majority pays

short shrift to the relevant law that would allow for the

admission of the tapes.

¶237 Lopez argues, and both the majority and dissenting

opinions in the court of appeals agree, that the visual portions

of the tapes are not hearsay and thus need not fall under a

hearsay exception in order to be admissible at trial. The

majority specifically rejected the State's argument that it

would be prejudiced by not being able to show A.O.'s physical

conditions, noting that the State "does not explain why it would

be precluded from displaying images of A.O.'s injuries without

playing the audio portion of the recordings." State v. Lopez,

No. 2011AP2733-CR, unpublished slip op. at 6 (Wis. Ct. App.

Sept. 26, 2012). The dissent agreed with this analysis, stating

that "A.O. turning 16 does not interfere with the State's

ability at trial to use the video of the interviews to show

A.O.'s injuries." Id. at 7 (Lundsten, P.J., dissenting).

¶238 Furthermore, Wis. Stat. § 908.08(7)2 specifically
permits the admission of audiovisual recordings of children

under other relevant evidentiary rules even where the hearsay

exception in Wis. Stat. § 908.08(3) does not apply. "Wis. Stat.

§ 908.08(7) permits the admission of a child's videotaped

statement under any applicable hearsay exception regardless of

whether the requirements of subsections (2) and (3) have been

2
Wisconsin Stat. § 908.08(7) provides in relevant part that
"a court or a hearing examiner may also admit into evidence an
audiovisual recording of an oral statement of a child that is
hearsay and is admissible under this chapter as an exception to
the hearsay rule."
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met." State v. Snider, 2003 WI App 172, ¶12, 266 Wis. 2d 830,

668 N.W.2d 784.

¶239 Lopez suggests that one such applicable hearsay

exception is the residual hearsay exception in Wis. Stat.

§ 908.03(24). That section permits the admission of "[a]

statement not specifically covered by any of the foregoing

exceptions but having comparable circumstantial guarantees of

trustworthiness." Wis. Stat. § 908.03(24).

¶240 In Snider, the court upheld the use of the residual

exception to admit an audiovisual recording of a child victim's

statement that did not meet the requirements set forth in Wis.

Stat. § 908.08. 266 Wis. 2d 830, ¶16. There, the State sought

to admit the recording after the victim testified because the

victim's testimony was significantly less detailed than the

account she had previously given. Id., ¶5. The defendant

objected as the taped statement was not made under oath and he

had not received 10 days prior notice as required by Wis. Stat.

§ 908.08.
¶241 On appeal, the Snider court concluded that the circuit

court had appropriately considered the factors enumerated in

State v. Sorenson, 143 Wis. 2d 226, 245-46, 421 N.W.2d 77

(1988), and State v. Huntington, 216 Wis. 2d 671, 687-88, 575

N.W.2d 268 (1998), and determined that the recording was

admissible under Wis. Stat. § 908.03(24). Snider, 266 Wis. 2d

830, ¶19. Those factors include:

[T]he child's age, ability to communicate and familial
relationship with the defendant; the person to whom
the statement was made and that person's relationship
to the child; the circumstances under which the
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statement was made, including the time elapsed since
the alleged assault; the content of the statement
itself, including any signs of deceit or falsity; and
the existence of other corroborating evidence.
Id., ¶17 (citing Sorenson, 143 Wis. 2d at 245-46).

¶242 Here, those same factors may militate towards

admission of A.O.'s recorded statements. A.O. was 14 at the

time of the recordings. As the circuit court concluded, she had

the age and level of development to understand the significance

of the events and verbalize them. A.O. had a close personal

relationship with Lopez, her mother. A.O. made the statements

to a social worker soon after the events occurred. Further, the

circuit court determined that A.O. clearly understood the

difference between the truth and a lie and did not evince any

signs of fear, guilt, anxiety, or stress. Lastly, her

statements were corroborated by the medical reports of her

injuries. Accordingly, based on the factors in Snider, there

arguably are sufficient indicia of trustworthiness to admit the

recordings under the residual exception.

¶243 Overall, the ability of the State to admit portions,
if not the entirety, of the audiovisual recordings under

relevant law other than Wis. Stat. § 908.08 undermines the

majority's determination that the State would suffer substantial

prejudice.

III

¶244 In sum, the majority opinion, though lengthy, does

very little to clarify the test for substantial prejudice. Its

analysis ignores not only the lack of evidence in the record
supporting its conclusion of substantial prejudice, but also the

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No. 2011AP2733.awb

strong evidence remaining against Lopez, which may still include

portions, if not the entirety, of the videotapes. As a result,

the majority strips any meaning from the word "substantial" as

used in our substantial prejudice analysis.

¶245 For the reasons set forth above, I determine, as did

the court of appeals, that the record and the law do not support

a conclusion of substantial prejudice here. Accordingly, I

respectfully dissent.

¶246 I am authorized to state that CHIEF JUSTICE SHIRLEY S.

ABRAHAMSON joins this dissent.

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