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Plea-Withdrawal, Post-Sentencing – Procedure – Burden of Proof

State v. John A. Jipson, 2003 WI App 222
For Jipson: Martha K. Askins, SPD, Madison Appellate


¶7. When challenging a guilty or no contest plea, the defendant has the initial burden to produce a prima facie case comprised of the following two parts. First, the defendant must show the trial court accepted the defendant’s guilty plea without conforming to Wis. Stat. § 971.08 or other mandatory procedures. Second, the defendant must merely allege he or she did not know or understand the information that should have been provided at the plea hearing. Bangert, 131 Wis. 2d at 268-69. If the defendant satisfies this test, the burden of persuasion then shifts to the State to show by clear and convincing evidence that the defendant’s plea was somehow otherwise knowingly, voluntarily, and intelligently made, despite any shortcomings at the plea hearing. Id. at 274.

¶11. The second step in the Bangert analysis shifts the burden to the State to prove by clear and convincing evidence that, notwithstanding deficiencies at the plea hearing, the defendant’s plea was otherwise knowingly, intelligently and voluntarily made. Bangert, 131 Wis.2d at 274. However, no matter how incredible the defendant’s prima facie case is, the State must present affirmative evidence to rebut it. See Nichelson, 220 Wis.2d at 224-25. The State is not limited to what transpired at or before the plea hearing to meet this standard, but rather can scour the entire record for affirmative evidence. See id.


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