2014 WI 11 | Wis. | 2014
Lead Opinion
¶ 1. This is a review of an unpublished decision of the court of appeals, State v. Lopez, No. 2011AP2733-CR, unpublished slip op.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's
¶ 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 '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.
¶ 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 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
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 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)
¶ 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:
*7 [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.
¶ 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.
*8 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 [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
¶ 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 would " 'lose it' and have this 'stupid reaction,' saying T 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.
¶ 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.
¶ 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.
¶ 20. A.O. also described an attack, which occurred approximately four weeks before the interviews, where Lopez choked A.O. for accidentally dropping
¶ 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.
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
¶ 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.
¶ 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
¶ 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.
¶ 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
¶ 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 court
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*15 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.
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.
*16 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 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
[A.O.] is fifteen now, I believe. So, she meets the first criteria.
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
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 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 he 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.
In addition to being allowed by statute, there is case law that allows the tapes to he 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.
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.
¶ 40. On December 2, 2009, both Lopez and A.O. testified against Olivas at his trial.
¶ 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
¶ 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 ap
¶ 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. Lopez1 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.
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?
*24 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.
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:
*25 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.
[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.
[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:
*27 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 seminóle [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 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*28 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 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.
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 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*30 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.
¶ 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.
¶ 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.
¶ 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
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. "[0]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.
¶ 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 as
¶ 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, 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.
¶ 67. On September 18, 2009, the circuit court heard argument and deemed the audiovisual recordings admissible. The 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.
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.
[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):
*35 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):
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.
¶ 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.
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 as I looked at the tape.
¶ 72. The court also explained its consideration of Wis. Stat. § 908.08(4)(f), (g), and (h), and A.O.'s manifestations in the interview:
There are other considerations set forth in the statute that I did take into account as well. The child's*36 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.
¶ 73. The court determined that the recordings were reliable 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 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.
¶ 74. Finally, the court reemphasized that the video recordings were trustworthy:
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.
¶ 75. Having ruled that the audiovisual recordings of A.O. 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:
*37 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 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
¶ 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 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 con-
¶ 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.
¶ 82. The contrast between Lopez's dilatory pretrial 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
¶ 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 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
¶ 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 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
¶ 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 significance.
¶ 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 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.
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.
¶ 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:
Not only the issue of accuracy and accurate reflection of memory that is preserved in those tapes, but*46 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.
¶ 93. Seeming to track the State's argument, the court 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 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:
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*47 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.
¶ 96. The State further argued that it would be substantially prejudiced if it lost these contemporaneous recordings, as they are the most accurate testimony available:
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.
¶ 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
¶ 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
¶ 101. In Bollig the defendant pled guilty to attempted sexual contact with a child under the age of 13 in violation of 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).
¶ 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.
¶ 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 evidence. Compare State v. Nelson, 2005 WI App 113, 282 Wis. 2d 502, 701 N.W.2d 32.
¶ 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 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
By the Court. — The decision of the court of appeals is reversed.
The Honorable Nicholas McNamara presided.
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,
All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated.
The criminal complaint refers to the victim as "AOL."
Any audiovisual recordings beyond these two are not the subject of this court's review.
All quotations from the audiovisual recordings are A.O.'s own words, as translated in the audio track of the recording.
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).
Olivas' trial date was later postponed to December 1,2009.
The Honorable Stuart Schwartz presided over both this hearing and the September 18, 2009 motion hearing.
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 hut younger than 16 years of age, among the factors which the court or hearing examiner may consider are any of the following
*17 (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.
(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) Wdiether 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.
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... ."
The Honorable Stephen E. Ehlke presided over Olivas' trial and subsequent sentencing.
The testimony on May 4, 2010, went to showing whether Lopez entered her pleas "knowingly, intelligently, and voluntar
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.
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 he 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.
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.
The quotation of the trial court record is included in the court of appeals decision, but not in the opinion of this court.
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.
In State v. Nelson the State alleged that it would he substantially prejudiced if the defendant were allowed to with
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 he imposed; or
*56 (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)(l)-(4) (Tentative Draft, Feb. 1967).
Concurrence Opinion
¶ 108. (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. "[0]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
¶ 110. Here, by contrast, "The State does not argue that Lopez failed to present a fair and just reason to withdraw her 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.
¶ 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 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).
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 withdraw his plea for any fair and just reason unless . . . ." In Dudrey, the court not only re
¶ 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.. .. [Ejntertaining an untimely motion to withdraw a plea would ordinarily constitute an abuse of discretion." Id. at 247.
¶ 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.
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 tried 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).
¶ 123. Preservation of Wisconsin's "any fair and just reason rule" disregards the sea changes in criminal procedure since the late 1960s.
¶ 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.
¶ 125. These principles, which appear so fundamental today, were not nationally recognized until the 1960s and 1970s. It must he 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
¶ 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 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).
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."
¶ 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
¶ 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.
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, 293 Wis. 2d 594, ¶ 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:
*63 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 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
¶ 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 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,
¶ 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 defendant.
¶ 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.
¶ 148. At Lopez's plea hearing, Judge McNamara conducted a textbook plea colloquy.
¶ 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
¶ 150. Another time, the court asked: "Right now of course you're receiving a translation. Are you satisfied with the 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;
*68 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;
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"—
¶ 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.)
¶ 160. Judge McNamara determined that the defendant had offered a fair and just reason for withdrawing her pleas,
¶ 161. It would be hard for this court to conclude that Judge McNamara's first determination was an erroneous exercise of 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.
¶ 163. For the foregoing reasons, I respectfully concur.
¶ 164. I am authorized to state that Justice MICHAEL J. GABLEMAN joins this concurrence.
"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.
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. R. 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.
*59 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 ah, 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.
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.
Attorney Maciolek was not permitted to withdraw until well after the plea.
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.
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."
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.
Dissenting Opinion
¶ 165. {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;
(C) Wisconsin case law on the "fair and just reason" standard has evolved to meet the changing criminal procedure landscape;
*72 (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
A
¶ 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.
¶ 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 revised criminal justice standards,
¶ 172. The ABA reaffirmed its commitment to the "fair and just reason" standard when it revised its criminal justice standards in 1999.
¶ 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,
¶ 174. The Uniform Rules of Criminal Procedure also use the "fair and just reason" standard,
¶ 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.
B
¶ 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
It reduces the number of appeals contesting the 'knowing and voluntariness' of a guilty plea.
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
¶ 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 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
¶ 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 inquire into
¶ 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."
¶ 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.' "
¶ 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.
C
¶ 191. Adherence to the "fair and just reason" standard is of long standing in Wisconsin law, see Libke
¶ 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."
¶ 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
¶ 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. 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).
¶ 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 court's denial of a defendant's motion to withdraw a guilty plea prior to sentencing since Libke.
D
¶ 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 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).
¶ 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 cases.
¶ 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
¶ 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 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.
E
¶ 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
¶ 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.
State v. Taylor, 2013 WI 34, ¶ 71, 347 Wis. 2d 30, 829 N.W.2d 482 (Prosser, J., concurring).
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).
ABA Standards for Criminal Justice: Pleas of Guilty (3d ed. 1999).
Fed. R. Crim. P 11(d)(2).
Unif. R. Crim. P 444(g), 10 U.L.A. 123 (1987).
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.").
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").
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).
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,*74 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;
(C) the right to a jury trial;
(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;
(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);
*75 (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.
Unif. R. Crim. E 444 (g), 10 U.L.A. 123 (1987).
Unif. R. Crim. E 444(c), 10 U.L.A. 120-21 (1987).
2013 Wis. Assembly Bill 383, § 732, reads in relevant part:
SECTION 732. 971.093 of the statutes is created to read:
*76 971.093 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.
United States v. Young, 424 F.2d 1276, 1279 (3d Cir. 1970).
These bullet points are stylized from Young, 424 F.2d at 1279.
These bullet points are stylized from ABA Standards for Criminal Justice: Pleas of Guilty Std. 14-2.1 at 85 (commentary) (3d ed. 1999).
These bullet points are stylized from the Olish case. State v. Olish, 266 S.E.2d 134, 136 (W Va. 1980).
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).
5 LaFave et al., supra note 17, § 21.5(a) at 868.
Id. § 21.5(a), at 867.
Id. § 21.5(a), at 871-72 (quoting United States v. Ortega-Ascanio, 376 F.3d 879 (9th Cir. 2004)).
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).
State v. Jenkins, 2007 WI 96, ¶ 88, 303 Wis. 2d 157, 736 N.W.2d 24.
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 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.
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.
Dissenting Opinion
¶ 213. (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).
¶ 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
II
¶ 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 message as the video recordings due to the passage of time and her therapy.
¶ 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 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
¶ 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 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 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.
¶ 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.Q.]'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
C
¶ 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. 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)
¶ 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
[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 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.
¶ 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 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.
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.
Wisconsin Stat. § 908.08(7) provides in relevant part that "a court or a hearing examiner may also admit into evidence an