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Plea-Withdrawal – Pre-Sentence – “Substantial Prejudice” to State: Child Testimony, Difficulty Obtaining

State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: Unrefuted indications of the child-complainant’s changed recollection of the details and reluctance to testify, ¶¶8-9, established “substantial prejudice” so as to defeat a pre-sentencing motion to withdraw plea:

¶16      A defendant seeking to withdraw a guilty plea before imposition of sentence must establish a fair and just reason and also “must rebut evidence of substantial prejudice to the State.” State v. Jenkins, 2007 WI 96, ¶43, ___ Wis. 2d ___, ___, 736 N.W.2d 24, 36. A decision to grant or deny a motion to withdraw a plea is within the circuit court’s discretion. Id., 2007 WI 96, ¶30, ___ Wis. 2d at ___, 736 N.W.2d at 33. Here, the State presented extensive evidence of the substantial prejudice it would suffer if Rushing were permitted to withdraw his guilty plea. Other than rhetoric, Rushing has not even come close to either “rebut[ting]” that evidence, which the circuit court summarized, or establishing that the circuit court erroneously exercised its discretion in denying his motion.


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