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Plea-Withdrawal – Pre-Sentence – “Substantial Prejudice” to State

State v. Jarmal Nelson, 2005 WI App 113
For Nelson: Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue: Whether, after Nelson demonstrated a “fair and just” reason for pre-sentencing plea withdrawal, the State satisfied is concomitant burden of showing “substantial prejudice” in order to defeat the motion, where the principal complainant could no longer be found.


¶17      We next turn to the question of whether the State met its burden of proof. We can find little case law touching on what constitutes substantial prejudice. The dictionary definition of “substantial” includes the words “important” and “essential.” See Webster’s Third New International Dictionary 2280 (1993). We conclude that the prejudice that need be shown to merit a denial of the withdrawal of a plea must be significant in order to trump a defendant’s fair and just reason.

¶19      (W)e the State failed to prove substantial prejudice. … The State failed to establish that she could not eventually be located or to set forth what attempts had been made to find her. This is a far cry from the facts in Bollig, where the victim was only four-and-one-half-years old at the time of the offense, and Bollig had engaged in “numerous dilatory tactics” for several years. See 232 Wis.  2d 561, ¶42.

¶20      … The trial court erroneously exercised its discretion because the trial court failed to consider the strength of the State’s case against Nelson.

¶21      The State has a far stronger case against Nelson than it has or had against any of the co-defendants. Indeed, one of the co-defendant’s criminal complaints was based, in part, upon Nelson’s confession. Here, however, DNA evidence connected Nelson to the sexual assaults and he confessed to the crimes. …

¶22            Thus, we conclude, under the facts as they existed at the time of the hearing, that the State failed to meet its burden of proof. While it may have been somewhat inconvenienced by the withdrawal of Nelson’s pleas, it failed to show that it was “substantially prejudiced.” Consequently, we conclude that the trial court erroneously exercised its discretion in denying Nelson the opportunity to withdraw his pleas to three counts of first-degree sexual assault.


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