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Plea-Withdrawal, Post-sentence — Procedure — Burden of Proof: Spanish-speaking Defendant, Untranslated Questionnaire

State v. Everardo A. Lopez, 2001 WI App 265
For Lopez: Margaret A. Maroney, SPD, Madison Appellate

Issue: Whether Lopez made a prima facie showing that the plea colloquy was inadequate.

Holding: The Spanish-speaking Lopez had problems, acknowledged by the trial court, communicating with his interpreter and necessitating a continuance of the plea hearing. At neither the aborted plea hearing or the subsequent one at which the plea was accepted did the trial court determine, as required by § 971.08(1)(a) that Lopez understood the nature of the charge. ¶¶14-18. On postonviction motion, he specifically asserted that he didn’t understand one of the elements (touching for gratification). Because the plea questionnaire was in Spanish, and not translated into English, it can’t support a knowing an intelligent plea. ¶19 (“We cannot determine whether a defendant has made a knowing and voluntary waiver of rights from a record that does not provide an English translation of what was provided to the defendant.”)

¶20. Given that Lopez made a prima facie showing that there was a violation of Wis. Stat. § 971.08(1)(a) by the circuit court, and given that Lopez alleged that he in fact did not know or understand the information which should have been provided at the plea hearing, the burden shifted to the State to show by clear and convincing evidence that Lopez’s plea was knowingly, voluntarily, and intelligently entered. See Bangert, 131 Wis. 2d at 274. Therefore, the circuit court erred when it assigned to Lopez the burden of showing “by clear and convincing evidence” the grounds for withdrawal of his plea. We reverse the order and judgment of the circuit court.”


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