Issue (composed by On Point)
Did the circuit court err in concluding that it should deny Lopez’s pre-sentencing plea withdrawal motion because plea withdrawal would substantially prejudice the state?
This issue statement is based on the summary disposition issued by the court of appeals and a review of the parties’ court of appeals briefs. According to those documents, Lopez entered pleas to child abuse charges but, before sentencing, moved to withdraw her pleas. The circuit court concluded she satisfied the “fair and just reason” standard for pre-sentence plea withdrawal, State v. Rushing, 2007 WI App 227, ¶16, 305 Wis. 2d 739, 740 N.W.2d 894, but also concluded the state would be substantially prejudiced by plea withdrawal and so denied her motion. (Slip op. at 2). The state claimed it would be prejudiced because in the time that passed since Lopez’s plea the victim had turned 16, depriving the state of the opportunity to use “a potent piece of evidence”—namely, the victim’s recorded interviews, made when she was 14, and admissible under Wis. Stat. § 908.08 until she reached the age of 16. (Slip op. at 2, 4).
The court of appeals, over a dissent by Judge Lundsten, concluded the state did not establish substantial prejudice. It noted there were many reasons why the victim might have turned 16 before the trial could commence, and the age cut-off—and thus any benefit to the victim in avoiding testifying—was a legislative determination made independently of any reasons why the trial did not occur before the victim turns 16. (Slip op. at 5). The court also distinguished Rushing, ¶¶8-9, 16, and State v. Bollig, 2000 WI 6, ¶¶43-46, 232 Wis. 2d 561, 605 N.W.2d 199, where plea withdrawal was denied because the state was prejudiced by the victim’s faded memory; here, there was no indication of faded memory, and the victim is older and therefore less likely to forget.
Thus, the case will address an apparently narrow, but still significant, issue concerning pre-sentence plea withdrawal: Is the state substantially prejudiced by a plea withdrawal because there is a child victim whose recorded statements were admissible under Wis. Stat. § 980.08 before the plea but, because the victim has turned 16 since the plea was entered, those statements are no longer admissible? It may also be a vehicle for the supreme court to expound on the meaning of the phrase “substantial prejudice.”