State v. Everardo A. Lopez, 2001 WI App 265
For Lopez: Margaret A. Maroney, SPD, Madison Appellate
Issue: Whether plea withdrawal is the appropriate remedy where the record contains no evidence that Lopez understood all elements of the offense
¶22. The proper remedy upon determining that the State failed to establish that Lopez understood the elements of the offense with which he was charged when he entered his no contest plea is to remand the case to permit Lopez to withdraw his plea. State v. Nichelson, 220 Wis. 2d 214, 226, 582 N.W.2d 460 (Ct. App. 1998).
¶24. Nichelson is instructive even though we do not apply waiver to the case at hand. The State did not meet its burden in Nichelson, and the State has not met its burden here. At the plea withdrawal hearing, the State did not make any attempts to make a record fulfilling its burden. We do not remand for a hearing to give the State a second opportunity to make an affirmative showing that Lopez’s plea was voluntarily entered because we conclude that under Nichelson, when the State has failed to meet its burden of proof in a plea withdrawal setting, it should not get a “second kick at the cat.”