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Plea-Withdrawal – Pre-Sentence – Ignorance of Sex Offender Registration – Prejudice to State

State v. George R. Bollig, 2000 WI 6, 232 Wis. 2d 561, 605 N.W.2d 199, affirming State v. Bollig,, 224 Wis.2d 621, 593 N.W.2d 67 (Ct. App. 1999)
For Bollig: Thomas E. Knothe, Collins, Quillin & Knothe, Ltd.

Issue: Whether the trial court should have granted Bollig’s pre-sentencing motion to withdraw guilty plea based on his ignorance of the sex offender registration requirement.

Holding: Lack of awareness of the registration requirement constitutes a fair and just reason for pre-sentencing plea withdrawal, but the state satisfied its attendant burden to show substantial prejudice so as to defeat the motion.

The state does not dispute Bollig’s claim that he was unaware of the sex offender registration requirement when he pleaded guilty. Because his motion to withdraw was made before sentencing, the question is whether this ignorance amounts to a fair and just reason for plea withdrawal. The court concludes that this does amount to a fair and just reason, ¶31, but the inquiry doesn’t end there: instead, “the burden shifts to the State to show substantial prejudice so as to defeat the plea withdrawal.” ¶34 (overruling court of appeals on this point, ¶38). Unlike the court of appeals, the trial court didn’t improperly allocate the burden of proof, and its ruling is therefore reviewed deferentially. Given the protracted nature of the proceedings, and the victim’s very tender age, the circuit court reasonably considered that plea withdrawal would adversely impact the child’s memory, and its ruling is sustained.

 

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