                                                                2014 WI 11

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2011AP2733-CR
COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent-Petitioner,
                            v.
                       Minerva Lopez,
                                 Defendant-Appellant.



                          REVIEW OF A DECISION OF THE COURT OF APPEALS
                                            (No Cite)

OPINION FILED:         March 7, 2014
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         September 3, 2013

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Dane
   JUDGE:              Nicholas J. McNamara

JUSTICES:
   CONCURRED:          PROSSER, GABLEMAN, JJ., concur. (Opinion filed.)
   DISSENTED:          ABRAHAMSON, C.J., dissents. (Opinion filed.)
                       BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
                       filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For      the    plaintiff-respondent-petitioner,   the   cause   was
argued by Aaron O’Neil, with whom on the briefs was J.B. Van
Hollen, attorney general.




       For the defendant-appellant, there was a brief by Patricia
A. FitzGerald, Mount Horeb, and oral argument by Patricia A.
FitzGerald.
                                                                            2014 WI 11
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.   2011AP2733-CR
(L.C. No.    2008CF1835)

STATE OF WISCONSIN                                :             IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent-Petitioner,                           FILED
      v.
                                                                     MAR 7, 2014
Minerva Lopez,
                                                                       Diane M. Fremgen
                                                                    Clerk of Supreme Court
              Defendant-Appellant.




      REVIEW of a decision of the Court of Appeals.                      Reversed.



      ¶1      ANNETTE KINGSLAND ZIEGLER, J.              This is a review of an

unpublished decision of the court of appeals, State v. Lopez,

No. 2011AP2733-CR, unpublished slip op. (Wis. Ct. App. Sept. 26,

2012),      reversing    the   Dane    County   Circuit        Court's1     denial      of

Minerva     Lopez's     ("Lopez")     presentence      motion     to    withdraw      her

pleas.

      ¶2      We   address     how    appellate       courts     should      review      a

circuit court's denial of a defendant's motion to withdraw a

plea before sentencing.               In general "a circuit court should

      1
          The Honorable Nicholas McNamara presided.
                                                                                     No.       2011AP2733-CR



'freely       allow          a    defendant          to     withdraw          his       plea     prior    to

sentencing for any fair and just reason, unless the prosecution

[would] be substantially prejudiced.'"                                  State v. Jenkins, 2007

WI   96,     ¶2,       303       Wis. 2d 157,         736       N.W.2d       24    (citing       State    v.

Bollig, 2000 WI 6, ¶28, 232 Wis. 2d 561, 605 N.W.2d 199; see

also State v. Rushing, 2007 WI App 227, 305 Wis. 2d 739, 740

N.W.2d 894).

       ¶3        The State does not argue that Lopez failed to present

a    fair    and       just       reason       to    withdraw          her    pleas.2           Thus,    our

analysis         in    this       case    focuses          on    whether          the    circuit     court

erroneously            exercised         its    discretion            in     concluding          that    the

State would be substantially prejudiced if Lopez were allowed to

withdraw her pleas.

       ¶4        Lopez contends that the State has not shown that it

would       be    substantially            prejudiced             if       she      were       allowed    to

withdraw         her    pleas.           She        argues      that       the    State        offered    no

evidence         that    the       victim       is    unable       to        testify       or    that    the

victim's memory has faded.                      Lopez further asserts that the State
failed to demonstrate that the case against Lopez would be more

difficult        to     prove,       and       that,       in    fact,       significant          evidence

against Lopez could still be admitted at trial.

       ¶5        The    State       contends          that      the     circuit         court     properly

exercised its discretion in determining that the State would be

       2
       Lopez contended that her pleas were rushed, and                                           that she
entered her pleas unknowingly due to her limited                                                 English.
Because the State conceded this issue, this opinion                                              assumes,
without deciding, that these facts constitute a "fair                                            and just
reason" for Lopez to withdraw her pleas.

                                                       2
                                                                          No.     2011AP2733-CR



substantially prejudiced if Lopez were allowed to withdraw her

pleas.      The State argues that, because the victim is now over 16

years of age, allowing Lopez to withdraw her pleas would prevent

it   from      presenting     important            audiovisual       interviews         of    the

victim at trial.          The State asserts that the circuit court was

correct       to   conclude      that    the       State     would       be     substantially

prejudiced because, without the audiovisual evidence, it would

be more difficult for the State to prove its case, the victim's

memory had faded during the pendency of the action, and it was

in the best interests of the victim not to be forced to testify.

      ¶6       We hold that the circuit court did not erroneously

exercise its discretion when it determined that the State would

be substantially prejudiced if Lopez were allowed to withdraw

her pleas.         We sustain the discretionary determination of the

circuit       court    because     the   record       reflects       that       it    was    "the

product     of     a   rational    mental      process       by    which      the     facts   of

record     and     law   relied     upon    are       stated       and     are       considered

together for the purpose of achieving a reasoned and reasonable
determination."           State    v.    Canedy,       161    Wis. 2d 565,            580,    469

N.W.2d 163 (1991) (citations omitted).                       Accordingly, we reverse

the court of appeals.

                              I.     FACTUAL ALLEGATIONS

      ¶7       In a trial against Lopez,                   the State would             have    to

prove    22    felony     counts    of   physical          abuse     of   a     child.        The

State's burden of proof is the highest standard in the law,

beyond a reasonable doubt.               The record reflects that the State
would have sought to prove the facts alleged in the criminal
                                               3
                                                             No.     2011AP2733-CR



complaint    in    part,   by   using       audiovisual   interviews     of   the

victim.      The   State   contends     that    it   would   be    substantially

prejudiced if Lopez were allowed to withdraw her pleas because

it is now precluded from introducing video evidence under Wis.

Stat. § 908.08(3) (2009-10)3 as the victim is now over 16 years

of age.     Thus, we turn to the factual basis for the allegations

against Lopez and describe the audiovisual recordings at issue

in this case.

     ¶8     On September 25, 2008, Madison Police Detective Robert

Hale ("Detective Hale") was "dispatched to [an address] in the

Town of Madison, Dane County, Wisconsin, in reference to a child

abuse investigation."       Detective Hale was sent to investigate a

report of "an emaciated female child in the closet . . . [with]

some type of injury to her head."              Upon arrival, Detective Hale

identified A.O., the primary victim in this case.                      Detective

Hale described the injuries to A.O. as follows:

          [Hale] immediately identified [A.O.]4 as a victim
     of a horrendous crime inasmuch as she was virtually
     covered from head to toe with bruises [and] with
     various bloody wounds to the top scalp of her head, an
     open gash to her right cheek, various generations of
     bruises ranging in color from purple to green to
     yellow, and injuries that were consistent with what
     [Hale] later found were breaks in her right hand and a
     broken right kneecap.
Detective Hale identified two suspects in the case, Lopez and

Porfirio Olivas-Lopez ("Olivas"), the victim's parents.

     3
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
     4
         The criminal complaint refers to the victim as "AOL."

                                        4
                                                                       No.     2011AP2733-CR



      ¶9     After    rescuing         A.O.    from    her     home,    Detective          Hale

transported     her       to     the     University      of    Wisconsin        Children's

Hospital.     Upon examination, A.O. was found to have "two breaks

to the fingers of her right hand, one of which was an older

break, the second of which was a newer break."                            A.O.'s broken

right kneecap "was going to need surgical treatment."

      ¶10    A child abuse specialist concluded that "the multiple

bruises and fractures present [on A.O.] are not consistent with

any   medical      cause."         The     specialist         also   noted      that       A.O.

"appeared     malnourished,"           and     was    "potentially           going    to     be

suffering from life-long disabilities due to injuries sustained

from the abuse, including but not limited to scarring resulting

in    permanent      disfigurement            and     injuries       leading     to        limb

immobility."       The specialist medically diagnosed A.O. with:

      1.    Definite physical abuse of a child.

      2.    Serial child torture.

      3.    Physical neglect of a child.

      4.    Medical neglect of a child.

      5.    Educational neglect of a child.

      6.    Consistent with causation of great mental harm.
      ¶11    On September 26, 2008, Detective Hale spoke with Lopez

at    the   Town     of        Madison     Police      Department.            During        the

discussion,     which      was    conducted         through    the     assistance      of    a

State-certified English-Spanish interpreter, "Lopez admitted to

causing the majority of the injuries sustained by [A.O.] and
observed by Detective Hale."                      Lopez admitted to having                 "hit


                                              5
                                                         No.    2011AP2733-CR



[A.O.]   on    the   head   with   a   [broomstick]."    "The    broom   was

described as a metal broom, and it was bent from the attack."

       ¶12    The criminal complaint, filed October 2, 2008, relates

that   Detective     Hale   elicited    further   admissions    from   Lopez

during the interview:

            When asked how often she would hurt [A.O.],
       [Lopez] said she would [use] Defendant Olivas' belt.
       She said that she used the belt on [A.O.'s] buttocks
       area. When asked if she ever punched [A.O.] with a
       fist, she said yes, and also said that she would slap
       [A.O.]. Detective Hale asked if [she] had ever bitten
       [A.O.] as [A.O.] looked like she had some bite marks
       on the inside of her legs.   Lopez said that she did
       not bite her on the inside of her leg, and when asked
       where she did bite her, Lopez pointed to the right
       side of her face by the jaw line and said "Here."
        . . .

             Detective Hale asked her what the worst thing she
       had done to [A.O.] was, she responded by saying "Well,
       hitting her on the head."    When asked if it was when
       she hit her on the head with the metal broom or other
       times, Lopez responded there were other times.     When
       asked specifically what she used to strike [A.O.] on
       the head with, she said she once had used "a frying
       pan."
Lopez admitted that police would be able to identify the frying

pan she had used to strike A.O. because "it got kind of dented

on the bottom."       When Detective Hale asked her how many times

she had struck A.O. on the head, Lopez replied, "[l]ately it has

been quite often."

       ¶13    Lopez also admitted to Detective Hale that she had

poured hot water on A.O., and stated "'[y]eah, it was hot from

being on the stove and we were both in the kitchen and she
wasn't hurrying enough.'"          Lopez continued by saying that she


                                       6
                                                           No.   2011AP2733-CR



would "'lose it' and have this 'stupid reaction,' saying 'I

threw it on her clothes' with [A.O.] responding 'You're burning

me, you're burning me.'"

    ¶14     Detective Hale also asked if Lopez had ever cut A.O.

with a knife.      Lopez said that, in fact, "she had used a knife

to cut [A.O.] with. . . .           When asked if [A.O.] screamed, she

said yes.     When asked if there was a lot of blood, she said

'Yes.'"

    ¶15     When   asked   what    other   ways   she   abused   A.O.,   Lopez

admitted to strangling her.          "[Lopez] said 'Be quiet, be quiet

or I'll make you be quiet.'         At that point, she would press down

on [A.O.'s] neck . . . .          Lopez said that she would leave red

marks on [A.O.'s] neck and that those would go away and then

bruises would come later."          Lopez noted that A.O. would try to

defend herself, but "'[t]hat would make me angrier and I would

just say to her, you're not going to beat me.'"

    ¶16     On October 6, 2008, and again on October 16, 2008,

A.O. gave statements about her abuse in the form of recorded
audiovisual interviews.5          In these audiovisual recordings, A.O.

recounts detailed descriptions of the abuse.              The circuit court

reviewed the audiovisual recordings as part of its determination

of whether the State would be substantially prejudiced if Lopez

were allowed to withdraw her pleas.




    5
       Any audiovisual recordings beyond these two are not the
subject of this court's review.

                                       7
                                                                   No.   2011AP2733-CR



       ¶17    In the audiovisual recordings, A.O. related how Lopez

hit her on the knee "with a metal baseball bat" on the day that

she    was    rescued.6       A.O.    gestured        to   her   fully   braced   and

immobilized right leg while she said "it hurt a lot" and that

she    was    barely   able   to     walk.         Subsequent    medical   diagnosis

revealed that her kneecap had been broken.

       ¶18    A.O. described that, three days before the attack with

the bat, Lopez hit her twice in the back of the head with a

piece of metal tube from a scooter, tearing her scalp.                            A.O.

pointed to the location of the injury to her scalp and described

that she was "bleeding a lot" and that she had to clean her own

bloodstains out of the carpet.                   A.O. then described a "piece of

flesh" detaching from her scalp while in the bath and being able

to "feel a hole" in the back of her head.                        A.O. also related

that       Lopez   refused    to     seek        medical   attention     for   A.O.'s

injuries.

       ¶19    About    "three      weeks"        before    the   interviews,      A.O.

further described seeing that Lopez "had something behind her
back," so she knew that Lopez "had something to hit me with."

Lopez hit her in the face with the metal bar from a drawer,

causing what       A.O.   described as a            "hole"   underneath her eye.

A.O. pointed to the dark circle under her eye.                      A.O. said that

Lopez forced her to wear "dark glasses and [her] hat" in public

to conceal the injury.


       6
       All quotations from the audiovisual recordings are A.O.'s
own words, as translated in the audio track of the recording.

                                             8
                                                              No.    2011AP2733-CR



    ¶20     A.O.     also     described      an    attack,    which       occurred

approximately      four     weeks   before   the    interviews,     where    Lopez

choked A.O. for accidentally dropping pizza on the floor during

dinner.       A.O.    lost     consciousness       and    "peed     her   pants."

According to A.O., Lopez stopped the attack because she feared

that the "pigs would be here any minute."                 A.O. was then forced

to "stand in the corner [of her parents' bedroom] for the whole

night."     As A.O. began to fall asleep, Olivas threw ice water on

her face.

    ¶21     A.O. described "being careful to make sure teachers

didn't see the bandages" as she pointed to scars on her wrists

from Lopez cutting her with a kitchen knife.                 She recalled that

Lopez cut her so deep "it opened me up [to where] I could see

white, and I said 'it's my bone.'"                 A.O. recalled that Lopez

would "sometimes throw the knife at me."                 Lifting up her shirt,

A.O. showed scars left when the knife hit her.

    ¶22     A.O. related that if Lopez noticed "that the frying

pan had a little speck of beans on it"                    after A.O. did the
dishes, Lopez would hit her on the head with the pan.                         This

abuse occurred "about five times."                Because of being struck in

this way, the handle of one pan broke off, while another became

"bent."     A.O. described that these beatings caused her "a lot of

pain, and [she] felt like something burst."

    ¶23     A.O. described an instance when she was crying as a

result of the repeated beatings and Lopez "bit her on the face"

in an effort to get her to "shut up before someone hears."
Lopez left "teeth mark bruises" on A.O.'s skin.
                                        9
                                                           No.   2011AP2733-CR



                           II.   PROCEDURAL HISTORY

    ¶24     On   October    2,   2008,    the   State   filed    a   criminal

complaint against Lopez, and she made her initial appearance

with counsel.     Lopez's bail was initially set at $25,000 cash.

The criminal complaint, which also served as the factual basis

for Lopez's eventual pleas, alleged 27 separate counts against

Lopez and Olivas for the physical abuse A.O. suffered.                    The

complaint   included   25   counts   of    intentionally    causing    bodily

harm to a child, contrary to Wis. Stat. § 948.03(2)(b) (2007-

08), a class H felony, and two counts of intentionally causing

great bodily harm to a child, contrary to § 948.03(2)(a) (2007-

08), a class C felony.           Lopez was charged with 16 of the 27

counts, including both counts of causing great bodily harm.

    ¶25     On October 8, 2008, the State notified Lopez of its

intent to use the October 6 audiovisual recording of A.O. at

trial under Wis. Stat. § 908.08.7         The notice came just six days

    7
        Wisconsin Stat. § 908.08 provides, in relevant part:

         (1) In any criminal trial or hearing . . . the
    court or hearing examiner may admit into evidence the
    audiovisual recording of an oral statement of a child
    who is available to testify, as provided in this
    section.

         (2)(a) Not less than 10 days before the trial or
    hearing, or such later time as the court or hearing
    examiner permits upon cause shown, the party offering
    the statement shall file with the court or hearing
    officer an offer of proof.   . . .   That party shall
    give notice of the offer of proof to all other
    parties, including notice of reasonable opportunity
    for them to view the statement before the hearing
    under par. (b).

                                     10
                                                                           No.    2011AP2733-CR



after       Lopez's    initial           appearance        and     two    days       after     the

interview was recorded.              At the time A.O. was 14 years old.                        The

State filed a similar notice relating to the October 16, 2008

audiovisual recording on July 3, 2009.

       ¶26    On October 9, 2008, Lopez, represented by a different

attorney, waived her right to a preliminary hearing and was

bound over for trial.               On November 3, 2008, Lopez was arraigned

on    the    Information,          which    charged        Lopez    and    Olivas      with     49

counts of felony child abuse.                   Lopez entered pleas of not guilty

and   not     guilty     by    reason      of     mental     disease       or    defect.        On

December 1, 2008, an Amended Information was filed, which added

penalty      enhancers        to    certain     counts       for    use    of    a    dangerous

weapon.

       ¶27    On   December         4,    2008,      the    State    and    Lopez      filed     a

"Stipulation       and    Agreement          Regarding        Audiovisual         Recording."

The   agreement        acknowledged         that     "the    State       has     provided      the

defense with a copy of an audiovisual recording of a child." The

parties agreed that "neither party will make additional copies
of    the    videotaped        statement,          nor     will     either       party       allow

additional copies to be made by any other entity or individual."

       ¶28    On January 27, 2009, Lopez's attorney filed a motion

to withdraw from representation.                     In the motion, counsel stated

that he was seeking to withdraw at the request of Lopez.                                        On

January 29, 2009, the court granted the motion to withdraw.                                     On

February 6, 2009, the State Public Defender appointed a new

attorney for Lopez.


                                                11
                                                         No.   2011AP2733-CR



     ¶29    On March 23, 2009, the court held a status conference

in the case.     The court set a trial date of July 14, 2009.

     ¶30    On April 10, 2009, Lopez's attorney filed a motion to

withdraw from representation because Lopez "no longer wants me

to represent her."      The court granted the motion to withdraw the

same day.

     ¶31    On June 19, 2009, Lopez, now represented by a third

attorney, filed a motion to sever her trial from Olivas'.                  On

June 23, 2009, the court held a hearing and granted Lopez's

motion to sever, concluding that there was a possibility that

Lopez and Olivas would pursue "mutually antagonistic" defenses.

After granting Lopez's motion, the court kept the July 14 trial

date for Olivas,8 but did not set a trial date for Lopez due to a

pending plea offer.

     ¶32    On   July   22,   2009,   Lopez's   third   attorney   filed   a

motion to withdraw as Lopez's counsel.          Counsel noted that Lopez

had written to both the public defender's office and to the

court requesting new appointed counsel.             Counsel argued that
"[t]his matter currently has no dates scheduled for trial and

neither Ms. Lopez nor the state will be prejudiced by any delay

in appointment of new counsel."

     ¶33    On July 31, 2009, the court9 held a hearing on the

motion to withdraw and stated:

     8
         Olivas' trial date was later postponed to December 1,
2009.
     9
       The Honorable Stuart Schwartz presided over              both   this
hearing and the September 18, 2009 motion hearing.

                                      12
                                                 No.   2011AP2733-CR


         There is nothing in the law that says the
    defendant has to like her attorney.          What the
    defendant is entitled to under the law is effective
    representation and counsel who is diligent in pursuing
    in this case his obligations as it relates to Ms.
    Lopez.

         You, [Counsel], are the third attorney who's been
    on this case. As I listened to Ms. Lopez's comments,
    half of her comments had to do with her background and
    her upbringing and had nothing to do with whether or
    not she could get along with you for purposes of
    representation.
    ¶34    At the motion hearing, the State referenced the need

to timely proceed.     Indeed, the court referenced the potential

prejudice to the State if the trial did not occur before A.O.

turned 16 years old:

         The State has made reference to the potential
    prejudice that it runs into in this matter. I realize
    May of next year is still ten months away.     But, at
    that point in time, the alleged victim in this matter
    would be turning sixteen, which would impact on the
    use of the Safe Harbor tapes.     Also, we are talking
    here about a child who was fourteen when these events
    allegedly occurred, which means this case has been
    pending over and hanging over the head of this child
    for a substantial period of time.
The court then evaluated Lopez's arguments and indicated it was
unwilling to allow counsel to withdraw and delay the matter

further:

         I don't see the delay here being for really any
    legitimate purpose. . . .

         I don't see that there's been an argument
    presented here that allows me to say that counsel has
    done anything other than act professionally in this
    matter. The fact that Ms. Lopez may not like what she
    hears is not counsel's fault.

           . . .

                                13
                                                                     No.       2011AP2733-CR


         I don't find any basis here to allow counsel to
    withdraw, and I'm going to deny the motion.
    ¶35     On     August   13,    2009,       the     court    held       a    scheduling

conference.       Lopez's trial was set for December 15, 2009, with a

motion hearing to be held in September.

    ¶36     On     September      18,     2009,      the     court     heard       various

motions, including the State's motion to admit the audiovisual

recordings    of    A.O.    at   trial.        Prior    to     the   court's       ruling,

Lopez's attorney briefly asked how the State planned to use the

recordings:

         [DEFENSE COUNSEL:] Is it their intention to try
    to use those instead of live testimony?

            THE    COURT:    No.    I   don't        think     the   law       allows
    that.

         [THE STATE:] No. We use -- We use the tapes in
    conjunction with live testimony.

         THE COURT: That's what I said.     I don't think
    the law allows that. At preliminary hearing --

            [THE STATE:]         Yes.

            THE COURT:      But not for purposes of the trial.

         [THE STATE:] No.                 The witness will be on the
    stand and we'll play it.

         [DEFENSE COUNSEL:] Then I guess to the extent
    that it would be a prior consistent statement, if
    there is those kind of challenges to the testimony, I
    think it would be appropriate under that theory. But,
    I just don't understand what they're going to gain out
    of it, if the witnesses are going to show up in court
    and testify as one would expect.
    ¶37     The court immediately clarified, however, that it was

addressing       the   State's      motion        to    admit        the       audiovisual



                                          14
                                                         No.    2011AP2733-CR



recordings   under    Wis.   Stat.   § 908.08,   and    not    as   a   prior

consistent statement:

    We're talking here about audio visual recordings of a
    statement of a child coming in under 908.08 of the
    statutes.

         More specifically, the statute indicates under
    the law that in this particular case, the audio visual
    statement can be used before the child's 16th birthday
    and if the interests of justice warrant its admission
    under subsection (4) of the statutes.10

    10
         Wisconsin Stat. § 908.08(4) provides:

         (4) In determining whether the interests of
    justice warrant the admission of an audiovisual
    recording of a statement of a child who is at least 12
    years of age but younger than 16 years of age, among
    the factors which the court or hearing examiner may
    consider are any of the following

          (a) The child's chronological age, level of
    development   and   capacity  to   comprehend  the
    significance of the events and to verbalize about
    them.

         (b)    The    child's   general   physical     and    mental
    health.

         (c) Whether the events about which the child's
    statement is made constituted criminal or antisocial
    conduct against the child or a person with whom the
    child had a close emotional relationship and, if the
    conduct constituted a battery or a sexual assault, its
    duration and the extent of physical or emotional
    injury thereby caused.

         (d) The child's custodial situation and the
    attitude of other household members to the events
    about which the child's statement is made and to the
    underlying proceeding.

         (e) The   child's   familial             or      emotional
    relationship to those involved in             the    underlying
    proceeding.

                                     15
                                                 No.   2011AP2733-CR


         [A.O.] is fifteen now, I believe. So, she meets
    the first criteria.
    ¶38   The court then granted the State's motion and deemed

the audiovisual statements admissible, citing to the statutory

factors of Wis. Stat. § 908.08(4):

          If you look at subsection (4), it indicates that
    in determining whether the interests of justice
    warrant the admission of an audio visual recording of
    a statement of a child who is at least 12 years of age
    but younger than 16 years of age, there are various
    factors the Court looks at. The child's chronological
    age, the level of development, capacity to comprehend
    the significance of the events and to verbalize about
    them.



         (f) The child's behavior at or reaction           to
    previous interviews concerning the events involved.

         (g) Whether the child blames himself or herself
    for the events involved or has ever been told by any
    person not to disclose them; whether the child's prior
    reports to associates or authorities of the events
    have been disbelieved or not acted upon; and the
    child's subjective belief regarding what consequences
    to himself or herself, or persons with whom the child
    has a close emotional relationship, will ensue from
    providing testimony.

          (h) Whether    the   child   manifests    or    has
    manifested symptoms associated with posttraumatic
    stress disorder or other mental disorders, including,
    without limitation, reexperiencing the events, fear of
    their    repetition,  withdrawal,   regression,    guilt,
    anxiety, stress, nightmares, enuresis, lack of self-
    esteem, mood changes, compulsive behaviors, school
    problems, delinquent or antisocial behavior, phobias
    or changes in interpersonal relationships.

         (i) Whether admission of the recording would
    reduce the mental or emotional strain of testifying or
    reduce the number of times the child will be required
    to testify.

                               16
                                            No.   2011AP2733-CR


     I've viewed the video tapes, as I've indicated,
in this matter.    Although the child does have the
capacity to verbalize about them, my sense of
recollection from looking at those tapes was that she
was, first of all, more comfortable talking in Spanish
than she was in English regarding these.           She
certainly   has  chronological   age   and  level   of
development, capacity to understand the significance
of the events.

     She seemed to be, despite the allegations that
were put forth by the State and as a result of what I
saw on the tape, physically and mentally healthy
enough to testify both in person and as was presented
on the tape, particularly since she's now been living
in a different environment.

      The events about which this child's statement is
made certainly constitute, assuming she is believed,
the criminal or antisocial conduct perpetrated against
the child.     And that [A.O.] had a close emotional
relationship with the defendant in this matter.    And
the conduct constitutes a battery at a minimum, and
the allegations clearly are physical abuse.    And its
duration and the extent of that are set forth in the
tape.

     I think that it's also fairly clear here that the
child's emotional relationship to those involved in
the underlying proceeding were set forth in the tape.
Her behavior or reaction to the previous events that
occurred to her were all set forth in the tape.

      There are other considerations set forth in the
statute that I did take into account as well.      The
child's behavior, attitude, demeanor during the course
of the interview I took into account.    How the child
responded to various questions. And when I say how, I
don't mean the substance of the answers other than
that they were related to the questions that were
asked but whether or not she seemed hysterical or
straightforward in her presentation, things of that
type.    Whether or not she evinced any signs of fear,
guilt, anxiety, stress and so forth.

     I   found   the   tapes   to   be    pretty   much
straightforward.   They were interviewed.    The person
conducting the interview attempted to put [A.O.] at

                          17
                                                    No.   2011AP2733-CR


     ease as much as possible.     Explained the purpose of
     the proceedings.      [A.O.] clearly understood the
     difference between truth and lying.       She will be
     testifying as well in this matter.

          I believe that under the considerations that the
     Court needs to look at, that allowing the audio visual
     tapes to be introduced is appropriate.         However,
     [A.O.] would need to testify first.      And I believe
     these tapes then come in under 908.01 sub (4)(a)2,
     which provides that a prior consistent statement of a
     witness is not hearsay if the declarant testifies at
     trial and is subject to cross-examination; the
     statement   is   consistent   with   the    declarant's
     testimony, which I assume it will be; and the
     statement is offered to rebut any express or implied
     charge against the declarant of a fabrication or
     improper influence or motive.

           In addition to being allowed    by statute, there is
     case law that allows the tapes        to be used in that
     regard.   I would simply note to     the parties that one
     of the more recent cases was          Ansani vs. Cascade
     Mountain, Inc., at 223 Wis. 2d       39.    That's a 1998
     case.

          The videotape also, as I've indicated, clearly
     shows the understanding on the part of the child
     regarding the importance of telling the truth and that
     the content, circumstances of the statement contained
     within the tape on their face provide an indicia of
     trustworthiness.

           So, I'll allow the videotape to come in.
     ¶39   On November 19, 2009, Lopez pled no contest to six of

the 22 counts against her.11   The remaining counts were dismissed


     11
       While there is no indication in the record that Lopez's
testimony at Olivas' trial was part of her plea agreement, she
did admit to physically abusing A.O. in her testimony.     The
State described Lopez's plea agreement as "substantially the
same offer that has been available to her since the middle of
summer [2009]. It's just that now she wishes to accept
it . . . ."

                                18
                                                                      No.     2011AP2733-CR



but read in pursuant to her plea agreement.                      The court accepted

Lopez's    pleas    and    ordered      a    presentence      investigation          report

("PSI").

    ¶40     On December 2, 2009, both Lopez and A.O. testified

against    Olivas    at     his     trial.12          The     State        presented     the

audiovisual recordings of A.O. as evidence against Olivas.                                On

December 4, the jury returned a guilty verdict against Olivas on

21 counts and found him not guilty on three.

    ¶41     On March 9, 2010, the PSI for Lopez's sentence was

filed with the circuit court.                     The PSI recommended a maximum

term of 37 years imprisonment with between 22 and 25 years of

initial    confinement      to    be    followed      by    12   years       of    extended

supervision.         Further,       the      PSI     described        an     "Anticipated

Supervision Plan" that would preclude Lopez from having contact

with any of her five children.

    ¶42     On March 18, 2010, Olivas was sentenced to 57 years

imprisonment,      with     20    years      of     initial      confinement        to   be

followed by 37 years of extended supervision.
    ¶43     On March 19, 2010, Lopez moved the court pro se to

withdraw    her    pleas.         On    March      22,     Lopez's     third       attorney

petitioned the court a second time to be allowed to withdraw as

Lopez's counsel.          This time counsel argued that, because he had

advised    Lopez    to     accept      her   plea     agreement,       her     motion     to




    12
       The Honorable Stephen E.                    Ehlke    presided        over   Olivas'
trial and subsequent sentencing.

                                             19
                                                        No.   2011AP2733-CR



withdraw     her   pleas   placed   her   "in   a   posture   essentially

adversarial to counsel."

    ¶44    On March 23, 2010, the court held a hearing on Lopez's

pro se motion to withdraw her pleas.            The court addressed the

standard to be applied to Lopez's motion:

    I have concluded based on our discussion here on the
    record, and my review of the case law, that we will
    have to have a specific hearing to give the defendant
    an opportunity to present evidence in support of her
    motion to withdraw.   If she doesn't present evidence
    supporting that, it would essentially have to be
    denied outright. If she has evidence, then the burden
    shifts back to the State I think on whether or not the
    State is prejudiced.      And if the State presents
    evidence of prejudice to them as a result of the plea
    that was entered and now asked to be withdrawn, then
    Ms. Lopez would have to produce evidence rebutting the
    prejudice, or the alleged prejudice.      And I think
    necessarily given the substance of what Ms. Lopez is
    apparently alleging in her filing just recently, it
    may well be that [Counsel] would have to be a witness.
    So we're going to do this in steps.
The court then addressed Lopez's attorney's petition to withdraw

as counsel:

         I think I have to grant -- I will grant
    [Counsel's] motion to withdraw as counsel.      We're
    going to have a status conference on April 6th, which
    was the date that we had scheduled for the sentencing
    hearing.   That will be a status conference hopefully
    with new counsel for Ms. Lopez.
    ¶45    On April 6, 2010, the court held a status conference.

Lopez was represented by her fourth appointed attorney.           Counsel

requested 30 days to prepare to argue Lopez's motion to withdraw

her pleas.     The court agreed and scheduled a hearing for May 4,

2010.


                                    20
                                                             No.   2011AP2733-CR



      ¶46   On May 4, 2010, the court held the hearing on Lopez's

motion to withdraw her pleas.          At the outset, counsel requested

that he be allowed to withdraw as Lopez's attorney because she

had   expressed   that    "she   doesn't    want   me   to   proceed    on   this

case."      The   court   considered    the   significant      delay,    denied

counsel's request, and stated:

      This is clearly at this point reaching absurdity and
      obvious   delaying   and   obstruction.     [Counsel's]
      retention is limited. The question, the only question
      that we're addressing today is the motion to withdraw
      Ms. Lopez' pleas.     And if she has a fair and just
      reason to withdraw those pleas, then the burden will
      shift to the State to prove whether they would be
      substantially prejudiced by allowing her to withdraw
      the pleas.    There's no reason why counsel and the
      defendant shouldn't be ready for this hearing today.
      The Court granted them exactly the time that they
      requested to be ready for this.     Again, it's a very
      limited inquiry right now and I'm not about to allow
      Ms. Lopez to dismiss her fourth attorney and try to
      have a fifth one appointed. Not at this stage, not at
      this time, and not for the reasons cited, not any of
      those are adequate by either counsel or Ms. Lopez. So
      the motion to withdraw is denied.
      ¶47   The court then addressed Lopez's motion to withdraw

her pleas and heard testimony from Lopez and her former attorney

concerning the circumstances of Lopez's plea agreement.13                      On

May 11, 2010, Lopez's attorney filed a formal motion to withdraw

her pleas.



      13
       The testimony on May 4, 2010, went to showing whether
Lopez   entered   her  pleas  "knowingly,  intelligently,   and
voluntarily."   The parties did not address the fair and just
reason for Lopez's plea withdrawal or the substantial prejudice
to the State until May 18.

                                       21
                                                                  No.     2011AP2733-CR



      ¶48   On May 18, 2010, the court reconvened the continued

motion hearing to determine if Lopez knowingly, intelligently,

and voluntarily pled, and if so, whether she should be allowed

to   withdraw   her    pleas.        The    State   introduced          Lopez's   plea

questionnaire and waiver into evidence.                  The State also called

Detective   Hale      to   testify    with      respect    to     the    substantial

prejudice   the    State    would     face      should    Lopez    be     allowed   to

withdraw her pleas:

      DIRECT EXAMINATION BY [THE STATE]:

      Q     Good afternoon, Detective.

      A     Good afternoon.

      Q     Please state and spell your name for the record.

      A     It's Robert J. Hale, H-a-l-e.

      Q     Detective Hale, what is your occupation?

      A     I'm a detective for the Town of Madison Police
            Department.

      Q     What is your connection to this case?

      A     I was the lead detective investigating the crime.

      Q     Did you interact with the victim in this case?

      A     Yes, on numerous occasions.

      Q     Or more specifically the victim [A.O.]?

      A     That's correct, yes.

      Q     When did you first meet her?

      A     I met her on the initial call back in, I believe
            '08, October, I think of '08. It was in '08 when
            the case was reported.

      Q     I think it was September.

                                           22
                                                       No.        2011AP2733-CR


    A     September, sorry.

    Q     How did you    find    her   at   that   time,     in     what
          condition?

    A     I won't forget that. I found her coming out of a
          bathroom, trying to coax her out of the bathroom
          and saw her in a horrible, horrible condition.
          She was emaciated, weak, full of blood. She was
          just -- she was just a mess. I likened her to a,
          dare I say, Holocaust victim, just completely
          beaten up and fragile.

    Q     Sometime after that [A.O.] was           interviewed        at
          Safe Harbor; is that correct?

    A     Yes, that's correct.

    Q     Do you recall how long after you first met her
          that interview took place?

    A     I don't recall exactly.      I'm surmising about two
          weeks.

    Q     And how did she -- well, tell us please about
          that interview process and what happened there?

         [DEFENSE COUNSEL:] Your Honor, I'm going to
    object. I think we're getting far away from the focus
    of this motion.

          [THE STATE:]   Actually --

         [DEFENSE COUNSEL:] We -- it's an attempt to re-
    try the case, or try the case I should say.
    ¶49   The court clearly considered the substantial prejudice

prong of the analysis, and stated:

         THE COURT: Well, the State does have the burden
    to establish substantial prejudice.    I would assume
    that that's what this testimony is going to. I'm not
    sure it's -- I mean, for the record as I mentioned at
    our last hearing I have actually viewed the Safe
    Harbor tapes.    I've read the transcripts as I was
    viewing them. So in terms of content goes I do agree
    with [Counsel] that I'm not sure all of that's really
    necessary.

                                 23
                                                        No.    2011AP2733-CR


         [THE STATE:] That being the case, Judge, I would
    ask then, Judge, that you take judicial notice of the
    fact that the Safe Harbor tape was used in evidence at
    [Porfirio] Olivas' trial, that a recorded copy is part
    of the record in this case along with a transcript,
    and that as you indicated that you have reviewed both.

          THE COURT: Okay.    Any objection to me taking
    judicial notice of those items, particularly the
    transcript, which is really the best documentary piece
    of evidence we have, of what I actually viewed and
    read?

             [DEFENSE COUNSEL:]    No, sir.

         THE COURT: Okay. I will take judicial notice of
    that and for purpose of this hearing the tape and the
    transcript of the Safe Harbor tape are part of this
    record.
    ¶50      After hearing the evidence and testimony, the court

briefly    recessed   and   then   reconvened   to   hear   argument   from

counsel:

    We're going to go back on the record.         And I'm
    prepared to hear summary arguments now from counsel.
    I'm still -- as I said at the last hearing I'm still
    viewing this as essentially three separate issues.
    The first is whether the plea by Ms. Lopez was entered
    knowingly, intelligently and voluntarily.   The second
    is whether she has a fair or just reason to withdraw
    her plea. And the third would be considering whether
    the State has proven substantial prejudice if she were
    to be allowed to withdraw her plea.
    ¶51      Lopez's counsel first argued that Lopez's pleas were

deficient.      Next, he argued that Lopez's desire to put on a

mental disorder defense, which she claimed was never addressed

by her prior attorneys, constituted a fair and just reason for

withdrawal of her pleas.      Finally, counsel argued the subject of

this appeal——whether the State showed substantial prejudice:



                                     24
                                                             No.     2011AP2733-CR


           [DEFENSE COUNSEL:] And as far as a substantial
      prejudice to the State, they have tapes on most of
      this evidence.    They've been through this evidence
      once, that makes it the second time even easier.   So
      the prejudice to the State I think is minimal.    All
      present -– all witnesses are available.     There are
      transcripts, as I said videotape testimony, so the
      argument that this would be an undo [sic] burden to
      re-try -- or to try this case, I think that evidence
      doesn't hold up. That argument doesn't hold up.

           THE COURT: And do you acknowledge that under
      Section 908.08(3) that the State would not be allowed
      to use the Safe Harbor tapes at trial in this case?

              [DEFENSE COUNSEL:]     Because of the age?

              THE COURT:    Yes.

              [DEFENSE COUNSEL:]     I believe that would be the
      case.
      ¶52     The State then argued against Lopez's plea withdrawal.

The   State    first    contended    that    Lopez's     pleas     were   entered

knowingly,      intelligently,      and    voluntary.       The     State    then

asserted that Lopez had presented no fair and just reason for

her plea withdrawal.        Rather, the State argued that Lopez merely

"desire[d]      to   have   a   trial,"     which   is   insufficient       under

Wisconsin law.         Finally, the State addressed how it would be

substantially prejudiced by Lopez's plea withdrawal:

           If in the alternative the Court were to find that
      Ms. Lopez has shown a fair and just reason to withdraw
      her plea, there is the next prong of analysis.     The
      burden shifts to the State to show that the State
      would be substantially prejudiced by allowing the
      withdrawal of this plea. And the seminole [sic] case
      on the matter is State v. Bollig, I gave the citation
      earlier, that says that's the case and if Ms. Lopez
      were able to withdraw her plea the State would indeed
      be substantially prejudiced because central to this
      trial and central to the evidence in this case are the
      video recorded statements taken by detectives at Safe

                                      25
                                                         No.     2011AP2733-CR


     Harbor of [A.O.], the principal victim, though not the
     only victim in these charges, the principal victim in
     these charges.

          She was 14 years old at the time that she was
     found. She was interviewed days after she was rescued
     and the video recordings are now close to 20 months
     old. She was a child witness.        And those video
     recordings are precluded from being admitted because
     she turned 16 a few days ago. Those video recordings
     are the most accurate testimony available of what
     happened of her view at that point in time. Over the
     nearly two years that have elapsed, or to be more
     accurate, 20 months that have elapsed since the
     recordings were made, memories do fade.         Those
     recordings include the description of incidents that
     took place close to six months in some cases even
     before the recordings were made as the information
     alleges that some of this conduct was alleged to have
     taken place as early as April of 2008, so the
     incidents occurred as early as in some cases as two
     years ago.

          Not only the issue of accuracy and accurate
     reflection of memory that is preserved in those tapes,
     but also those tapes are demonstrative of [A.O.'s]
     state, her physical state and her emotional state at
     the time that they were made. Her demeanor, which is
     essential to credibility determination, which is an
     essential function of course of a jury, or trier of
     fact, are lost if we cannot present those recordings.
     In those recordings she looks like a terribly abused
     child that she was.    Fortunately for her now, she's
     doing very well and looks great and that's not the
     same presentation that would be made at trial at this
     point in time. It wouldn't accurately reflect how she
     appeared at the time and that is a substantial
     prejudice that the State would suffer.
     ¶53   Having   heard   argument    from   both   parties,    the   court

ruled on the motion.        First, the court concluded that Lopez's

pleas   were   entered knowingly, intelligently, and voluntarily.

The court then addressed whether Lopez had presented a fair and
just reason to withdraw her pleas.         The court expressed concern


                                   26
                                                   No.   2011AP2733-CR



about Lopez's conduct, but in the end concluded that Lopez had

shown a fair and just reason to withdraw her pleas:

    I'm confused on the record, I'm confused on this case
    generally    as   to    whether   at   times    Ms.   Lopez
    misunderstands      the    proceedings    or     completely
    understands them and is using the process and the
    claim of misunderstanding to delay and frustrate the
    basic administration of justice here.        She certainly
    did not expeditiously seek to withdraw her plea. She
    waited until the trial and conviction and sentencing
    of her husband.      She waited until approximately ten
    days   after    the   Court   received   the   presentence
    investigation report with a recommendation for a
    sentence by the Department of Corrections.       . . .

         Again, I think that's a really close call.      I
    think kind of taking all of the circumstances
    together, the real language issues that Ms. Lopez
    obviously is dealing with and all of the other factors
    that are on the record, I think she probably has met
    that burden of proof and that she has proven by
    preponderance of the evidence a fair and just reason
    for me to allow her to withdraw her plea.
    ¶54   The court then concluded, however, that allowing Lopez

to withdraw her pleas would substantially prejudice the State:

         But as in the Bollig case and many of the others,
    that conclusion does not end the [inquiries] as to
    whether the plea withdrawal should be granted.      It
    then becomes the State's burden to prove that allowing
    the defendant to withdraw her plea would result in
    substantial prejudice to the State.    The Bollig case
    is directly on point for that as well as a case called
    State v. Rushing, which is 305 Wis. 2d 739.     It's a
    Court of Appeals case. The Rushing case also involved
    accusations of injuries to child, in this case it was,
    in the case of the Rushing that case it was a sexual
    assault and the defendant frequently changed his
    lawyers [sic].    The defendant changed his pleas at
    different times or attempted to and there was a
    videotape that was subject of the evidence against the
    defendant and was one of the reasons cited by the
    trial court and the Court of Appeals as to why the

                                27
                                                      No.   2011AP2733-CR


    State had shown substantial prejudice. In other words
    that they would be in that case not be allowed to use
    the tape.

         In this case the Safe Harbor tapes taken of the
    victim [A.O.] are lengthy.    If I remember correctly
    they're about three-and-a-half hours long.   They are
    compelling.   The testimony in the tape is credible.
    It's recent to when the events occurred.          The
    testimony is specific. Clear. The age of the victim
    as reflected in the tapes is significant.   And today
    if she was forced to testify of the passage of time
    from when the events occurred is significant here. I
    think this is an absolutely clear and easy call on my
    part to find that if the State was not allowed to use
    the Safe Harbor tapes it would result in substantial
    prejudice to the State.

          I have to believe that part of [A.O.'s] therapy
    and recovery from everything that happened to her has
    included a need to forget somewhat, to move on, to
    move forward, to try to make the best of the future
    life in an attempt to overcome the harm that was done
    to her.    If she is indeed successful in her recovery
    and therapy, then hopefully some of the things she's
    already forgotten.    I hope for her sake that's the
    case.   But because I think there's a real risk that
    she has, in fact, again just given the passage of time
    and the clarity and specificity of her testimony
    there's no way that she could ever be expected to
    reproduce the testimony she gave in the Safe Harbor
    tapes and she shouldn't be forced to, and so like the
    finding by the trial court in the Bollig case and the
    Rushing case that I referred to, because the State
    would face substantial prejudice to not be allowed to
    use the Safe Harbor tapes, the defendant's motion to
    withdraw her plea is denied.
    ¶55   On June 1, 2010, the court sentenced Lopez to 30 years

imprisonment, comprised of 20 years of initial confinement to be

followed by 10 years of extended supervision.         Lopez moved for

postconviction relief on September 1, 2011, and the court denied

her motion on November 16, 2011.    Lopez appealed.



                               28
                                                                            No.        2011AP2733-CR



       ¶56     A    divided          panel    of    the   court       of   appeals       summarily

reversed       in    an    unpublished             opinion      and   order.           Lopez,     No.

2011AP2733-CR, unpublished slip op. at 2.                             The court of appeals

agreed with the circuit court that Lopez had shown a fair and

just reason to withdraw her pleas, but it held that that State

would not be substantially prejudiced.                           Id. at 3.        The court of

appeals        concluded            that     the     circuit      court     had        erroneously

exercised discretion in denying Lopez's motion to withdraw her

pleas.    Id.

       ¶57     The court of appeals reasoned that the age limit in

Wis. Stat. § 908.08(3)(a) is a legislative determination and,

therefore, the limit cannot be prejudicial to the State.                                       Id. at

4-5.     The court of appeals also held that any assertion of faded

memory       on     the    part        of     A.O.      was     purely     speculative           and,

therefore, the State did not meet its burden to show prejudice.

Id. at 6.           Finally, the court appeals concluded that the State

was not substantially prejudiced because it could still use the

video    portion          of    the        audiovisual        recordings    to     show        A.O.'s
physical condition.                  Id.

       ¶58     Judge       Paul        Lundsten       dissented.           Id.    at      7.       He

concluded          that        the     circuit       court      properly       exercised          its

discretion.          He reasoned that the "loss of detail" that would

result from excluding the audiovisual recordings would result in

substantial prejudice.                     Id. at 7, 9.        He concluded that there is

"no requirement that the State prove that the prejudice be such

that     the       State       is     substantially           less    likely      to     obtain     a
conviction."         Id. at 10-11.
                                                   29
                                                                  No.     2011AP2733-CR



       ¶59    The State petitioned this court for review, which we

granted on February 11, 2013.

                             III. STANDARD OF REVIEW

       ¶60    "A decision to grant or deny a motion to withdraw [a

plea] is within the discretion of the trial court."                            State v.

Rhodes, 2008 WI App 32, ¶7, 307 Wis. 2d 350, 746 N.W.2d 599.                             "A

circuit court's discretionary decision to grant or deny a motion

to withdraw a plea before sentencing is subject to review under

the erroneous exercise of discretion standard."                         Jenkins, 303

Wis. 2d 157, ¶30 (citing State v. Kivioja, 225 Wis. 2d 271, 284,

592    N.W.2d 220     (1999)).      All     that     "this    court     need   find      to

sustain a discretionary act is that the circuit court examined

the relevant facts, applied a proper standard of law, and, using

a demonstrated rational process, reached a conclusion that a

reasonable judge could reach."                 Id. (quoting Loy v. Bunderson,

107 Wis. 2d 400, 414-15, 320 N.W.2d 175 (1982)).

                                   IV.     ANALYSIS

       ¶61    "Withdrawal of a guilty plea before sentencing is not
an    absolute     right."       Jenkins,      303    Wis. 2d 157,       ¶32    (citing

Canedy, 161 Wis. 2d at 583).              "[A] circuit court should 'freely

allow a defendant to withdraw his plea prior to sentencing for

any fair and just reason, unless the prosecution [would] be

substantially       prejudiced.'"           Id.,     ¶2      (citing     Bollig,        232

Wis. 2d 561, ¶28).       "[T]he burden is on the defendant to offer a

fair    and    just    reason     for     withdrawal      of    the     plea"      by     a

preponderance of the evidence.                 Canedy, 161 Wis. 2d at 583-84.
"[O]nce      the   defendant    presents       a   fair   and    just    reason,        the
                                          30
                                                                    No.     2011AP2733-CR



burden shifts to the State to show substantial prejudice so as

to defeat the plea withdrawal."              Bollig, 232 Wis. 2d 561, ¶34.

       ¶62     Because the State has conceded that Lopez has shown a

fair and just reason for withdrawing her pleas, the burden is on

the State to show that granting the withdrawal would cause it

substantial prejudice.             If the State meets this burden, Lopez

"must rebut evidence of substantial prejudice to the State."

Jenkins, 303 Wis. 2d 157, ¶43.

       ¶63     The   State    argues       that    it     would    be     substantially

prejudiced by Lopez's plea withdrawal in three ways.                         First, the

State claims that its inability to introduce A.O.'s audiovisual

recordings       under   Wis.     Stat.    § 908.08       constitutes       substantial

prejudice.       Second, the State argues that A.O.'s faded memory as

a witness constitutes substantial prejudice.                      Finally, the State

asserts that it would be substantially prejudiced by the harm to

A.O. that would result from forcing her to testify.

       ¶64     Lopez argues that the State has not shown that it

would     be    substantially       prejudiced       if    she    were      allowed   to
withdraw her pleas.               She contends that the State offered no

evidence that A.O. is unable to testify or that her memory has

faded.        Lopez asserts that the State did not show that it would

be     more    difficult     to    prove     its    case    and     that,     in   fact,

significant portions of the evidence could still be admitted at

trial.        Lopez also argues that the trial court did not actually

find    the     audiovisual       recordings      admissible      under     Wis.   Stat.

§ 908.08, but rather, erroneously found them admissible as prior
consistent statements under Wis. Stat. § 908.01(4)(a)2.                            Thus,
                                            31
                                                             No.     2011AP2733-CR



Lopez argues that A.O.'s age is irrelevant to the evidentiary

determination     and     therefore,        substantial    prejudice       cannot

result.

     ¶65    We   conclude     that     the     circuit     court     found      the

audiovisual recordings admissible under Wis. Stat. § 908.08, and

did not erroneously exercise its discretion when it determined

that the State would be substantially prejudiced if Lopez were

allowed to withdraw her pleas.           Therefore, we reverse the court

of appeals.

              A. Admission of A.O.'s Audiovisual Recordings

     ¶66    On October 8, 2008, just six days after the filing of

the criminal complaint, the State provided notice to Lopez of

its intent to use the audiovisual recordings of A.O.14                 The State

sought     admission    of   A.O.'s     audiovisual       recordings     as    the

"Audiovisual Recording of Child's Statement" pursuant to Wis.

Stat. § 908.08.        Because A.O. was over 12 but under 16 years of

age, the statute required that the circuit court find that the

"interests of justice warrant" the admission of the recorded
statement.       Wis.    Stat.    § 908.08(3)(a)2.          In     weighing    the

admissibility of the recorded statement, the circuit court was

required to consider the factors listed in § 908.08(4).

     ¶67    On   September       18,   2009,    the   circuit      court      heard

argument and deemed the audiovisual recordings admissible.                      The



     14
       At that time, only the October 6, 2008 recording had been
made.   On July 3, 2009, the State provided notice to Lopez of
its intent to use the October 16, 2008 recording.

                                       32
                                                          No.    2011AP2733-CR



court specifically referenced Wis. Stat. § 908.08(4) in granting

the motion:

    We're talking here about audio visual recordings of a
    statement of a child coming in under 908.08 of the
    statutes.

         More specifically, the statute indicates under
    the law that in this particular case, the audio visual
    statement can be used before the child's 16th birthday
    and if the interests of justice warrant its admission
    under sub-section (4) of the statutes.

         [A.O.] is fifteen now, I believe. So, she meets
    the first criteria.
    ¶68   The   circuit    court    began    its   discussion    of   how   the

audiovisual   recordings   met     the    requirements   for    admission    by

noting that the court had personally viewed the recordings:

         I've viewed the video tapes, as I've indicated,
    in this matter. Although the child does have the
    capacity to verbalize about them, my sense of
    recollection from looking at those tapes was that she
    was, first of all, more comfortable talking in Spanish
    than she was in English regarding these.
    ¶69   The court then discussed how the recordings satisfied

Wis. Stat. § 908.08(4)(a):

    She certainly has the chronological age and level of
    development, capacity to understand the significance
    of the events.
    ¶70 The court went further, addressing her physical and

mental health, as required by Wis. Stat. § 908.08(4)(b):

         She seemed to be, despite the allegations that
    were put forth by the State and as a result of what I
    saw on the tape, physically and mentally healthy
    enough to testify both in person and as was presented
    on the tape, particularly since she's now been living
    in a different environment.


                                     33
                                                            No.   2011AP2733-CR



    ¶71   The court also discussed the factors in Wis. Stat.

§ 908.08(4)(c),    (d),    and   (e),    including    the   alleged   criminal

assault by a family member and its emotional impact on A.O.:

          The events about which this child's statement is
    made certainly constitute, assuming she is believed,
    the criminal or antisocial conduct perpetrated against
    the child.     And that [A.O.] had a close emotional
    relationship with the defendant in this matter.    And
    the conduct constitutes a battery at [a] minimum, and
    the allegations clearly are physical abuse.    And its
    duration and the extent of that are set forth in the
    tape.

          I think that it's also fairly clear here that the
    child's emotional relationship to those involved in
    the underlying proceeding were set forth in the tape.
    Her behavior or reaction to the previous events that
    occurred to her were all set forth as I looked at the
    tape.
    ¶72   The    court    also   explained   its     consideration    of   Wis.

Stat. § 908.08(4)(f), (g), and (h), and A.O.'s manifestations in

the interview:

          There are other considerations set forth in the
    statute that I did take into account as well.      The
    child's behavior, attitude, demeanor during the course
    of the interview I took into account.    How the child
    responded to various questions. And when I say how, I
    don't mean the substance of the answers other than
    that they were related to the questions that were
    asked but whether or not she seemed hysterical or
    straightforward in her presentation, things of that
    type.    Whether or not she evinced any signs of fear,
    guilt, anxiety, stress and so forth.
    ¶73   The court determined that the recordings were reliable

and deemed them admissible:

         I   found   the   tapes   to   be    pretty   much
    straightforward.   They were interviewed.    The person
    conducting the interview attempted to put [A.O.] at
    ease as much as possible.    Explained the purpose of
                                        34
                                                             No.     2011AP2733-CR


       the proceedings.      [A.O.] clearly understood the
       difference between truth and lying.     She will be
       testifying as well in this matter.

            I believe that under the considerations that the
       Court needs to look at, that allowing the audio visual
       tapes to be introduced is appropriate.        However,
       [A.O.] would need to testify first.
       ¶74   Finally,     the     court    reemphasized     that     the     video

recordings were trustworthy:

            The videotape also, as I've indicated, clearly
       shows the understanding on the part of the child
       regarding the importance of telling the truth and that
       the content, circumstances of the statement contained
       within the tape on their face provide an indicia of
       trustworthiness.
       ¶75   Having ruled that the audiovisual recordings of A.O.

were    admissible     under    Wis.   Stat.    § 908.08,    the     court    then

addressed,    presumably        in   response   to    argument     from    Lopez's

attorney,     the      admissibility       of   the   recordings      as     prior

consistent statements:

       And I believe these tapes then come in under 908.01
       sub (4)(a)2, which provides that a prior consistent
       statement of a witness is not hearsay if the declarant
       testifies   at  trial   and   is  subject  to   cross-
       examination; the statement is consistent with the
       declarant's testimony, which I assume it will be; and
       the statement is offered to rebut any express or
       implied charge against the declarant of a fabrication
       or improper influence or motive.

             In addition to being allowed         by statute, there is
       case law that allows the tapes             to be used in that
       regard.   I would simply note to          the parties that one
       of the more recent cases was               Ansani vs. Cascade
       Mountain, Inc., at 223 Wis. 2d            39.    That's a 1998
       case.
Although     it   is    unclear      whether    the   court's      determination
regarding admissibility of the recordings as a prior consistent

                                          35
                                                                     No.    2011AP2733-CR



statement was proper, the fact remains that the court first

properly deemed the recordings admissible pursuant to Wis. Stat.

§ 908.08.

       ¶76    The court's intent to admit the audiovisual recordings

under Wis. Stat. § 908.08 can be found elsewhere in the record.

During       the     pretrial       proceedings,     the     court   referenced       the

importance of conducting a timely trial so that this evidence

could be admitted under § 908.08.                  For example, in response to a

July   2009        request    by    Lopez's    third    attorney     to    withdraw   as

counsel, the court stated "I realize May of next year is still

ten months away.           But, at that point in time, the alleged victim

in this matter would be turning sixteen, which would impact on

the use of the Safe Harbor tapes."                      At that time, the court

refused to allow further delay in the proceedings.                          The court's

concerns       regarding        a    delay    reflect      that    A.O.'s     sixteenth

birthday      would     impact       the   admission    of    this    evidence    under

§ 908.08.          The court's admission determination was not focused

on admission of the recordings as prior consistent statements.
Appellate courts are not quick to reverse a reasoned evidentiary

determination         of     the    circuit   court.       See,   e.g.,       State    v.

Ringer, 2010 WI 69, ¶24, 326 Wis. 2d 351, 785 N.W.2d 448.

       ¶77    In sum, the State clearly gave notice that it sought

to admit the audiovisual recordings of A.O. under Wis. Stat.

§ 908.08.          The court made clear on the record that it deemed the

recordings admissible under § 908.08.                      The record demonstrates

that the State had every intention of introducing this powerful
audiovisual evidence at Lopez's trial under that section.                             In
                                              36
                                                           No.   2011AP2733-CR



fact, the State introduced the recordings at Olivas' trial under

§ 908.08.       Regardless of the court's earlier comment that the

recordings "come in under 908.01 sub (4)(a)2," the court clearly

deemed    the     recordings   admissible       under   § 908.08,    and     it

understood that A.O. turning 16 years old would impact their

admissibility.       Thus, once A.O. turned 16 years old the State's

most compelling piece of evidence was no longer admissible at

trial in the same way, if at all.          The fact that the State would

be precluded from introducing the recorded statements of the

child    victim   under   § 908.08   is    of   great   significance    to    a

substantial prejudice analysis.

                   B. Substantial Prejudice To The State

    ¶78     At the outset, we note that the circuit court did not

decide Lopez's motion to withdraw her pleas in a vacuum.                     In

reaching its conclusion, the court, which would be conducting

the trial in this case, considered the value of the audiovisual

evidence and      the effect that allowing Lopez to withdraw her

pleas would have on the victim and the State.              Ultimately, the
court    concluded    that   substantial    prejudice    would   befall    the

State if Lopez were allowed to withdraw her pleas.                  The court

was thus in a particularly good position to reasonably conclude

that "this is an absolutely clear and easy call on my part to

find that if the State was not allowed to use the Safe Harbor

tapes it would result in substantial prejudice to the State."

We sustain the court's determination and now turn to the facts

which underlie that conclusion.


                                     37
                                                         No.   2011AP2733-CR



     ¶79     On November 19, 2009, Lopez pled no contest to several

counts.      The court found her guilty and ordered a PSI.               In

exchange for her pleas, the State agreed to dismiss but read in

16 of the 22 counts against her.         The dismissed counts could be

considered for sentencing purposes.        The State did not otherwise

agree to any limitations regarding sentencing.

     ¶80     At the time of Lopez's pleas, the court had already

deemed the audiovisual recordings of A.O. admissible under Wis.

Stat. § 908.08, and had already discussed the need to proceed to

trial before A.O. turned 16 years old.           Thus the court, the

State, and Lopez were all aware of the significance of having a

trial before that date.       Even defense counsel had acknowledged

that the recordings would not be admissible once A.O. reached

her sixteenth birthday.15

     ¶81     On March 19, 2010, four months after Lopez entered her

pleas, she moved the court pro se to withdraw her pleas.                 As

A.O.'s biological mother, Lopez would have known that her motion

came less than two months before A.O.'s sixteenth birthday, at

     15
       On May 18, 2010, at the hearing on Lopez's request to
withdraw her pleas, the court engaged in the following exchange
with counsel:

          THE COURT: And do you acknowledge that under
     Section 908.08(3) that the State would not be allowed
     to use the Safe Harbor tapes at trial in this case?

             [DEFENSE COUNSEL:]    Because of the age?

             [THE COURT:]   Yes.

             [DEFENSE COUNSEL:]    I believe that would be the
     case.

                                    38
                                                                  No.    2011AP2733-CR



which     time    A.O.'s   age    would       then     render     her    audiovisual

interviews       inadmissible    under    Wis.       Stat.   § 908.08.       Lopez's

motion also came just ten days after the PSI was filed.                      The PSI

recommended that Lopez be sentenced to a maximum of 37 years

imprisonment, with 25 years of initial confinement followed by

12 years of extended supervision.                    The PSI also recommended

Lopez have no contact with her children.                     On March 18, 2010,

just one day before Lopez's change of heart, Lopez's husband,

Olivas, had been sentenced to 57 years imprisonment.

    ¶82     The     contrast     between        Lopez's      dilatory      pre-trial

conduct and her more recent post-plea enthusiasm for putting the

State to its burden of proof at a trial does not escape our

notice.      While not jugular in our review of the substantial

prejudice    analysis,     we    note    that    Lopez's     delayed     request    to

withdraw her pleas was also commented on by the trial court on

May 4, 2010.        The court stated that "[t]his is clearly at this

point reaching absurdity and obvious delaying and obstruction,"

and that Lopez "certainly did not expeditiously seek to withdraw
her plea[s]."       Certainly, the court understood that Lopez's PSI

recommended that she receive a lengthy prison sentence and have

no contact with her children, and her motion was made just one

day after her husband, Olivas, had been sentenced to 57 years

imprisonment.        The   timing   of    her     motion     at   least    raises    a

question    regarding      the   motivation       underlying       her    change    of

heart.

    ¶83     Specifically, in any of the approximately 13 months
before she entered her pleas, Lopez had every opportunity to
                                         39
                                                                           No.     2011AP2733-CR



request a timely trial.              In fact, she could have demanded, but

did not demand, a speedy trial.                          Wis. Stat. § 971.10(2)(a).

Instead      of    insisting    on    a    more        expeditious         trial      date,    the

record reflects that Lopez seemed to prefer delay.                               For example,

on   December       17,    2008,     two    days        before       her     final     pretrial

conference,        Lopez    sought        and    received        a     continuance.             On

January 27, 2009, Lopez's first attorney moved to withdraw as

counsel at Lopez's request.                The court granted the motion.                       On

April   10,       2009,    Lopez's    second          attorney       moved    the     court     to

withdraw      as    counsel,    again       at       Lopez's     request.            The    court

granted the motion.             On July 7, 2009, Lopez filed a pro se

motion with the court seeking to dismiss her third attorney.                                   On

July    22,   2009,       Lopez's    third       attorney        followed        up    on     that

request by formally moving the court to withdraw as counsel.

Clearly, the court believed that Lopez was seeking delay, rather

than the opportunity to bring her case to trial.                             When the court

denied Lopez's third attorney's motion to withdraw as counsel on

July 31, 2009, it stated "I don't see the delay here being for
really any legitimate purpose."                      Lopez ultimately entered into a

plea agreement just weeks before her long delayed trial date.

       ¶84    Thereafter, Lopez moved to withdraw her pleas, and her

third attorney moved the court to withdraw as counsel.                                         The

court granted counsel's motion.                       However, when Lopez requested

that her fourth attorney withdraw on May 4, 2010, the court

stated, "I'm going to deny counsel's motion to withdraw.                                      This

is clearly at this point reaching absurdity and obvious delaying
and obstruction."           The circuit court also noted that the timing
                                                40
                                                                   No.    2011AP2733-CR



of Lopez's request to withdraw her pleas was suspect.                          The court

determined that Lopez might be "using the process and the claim

of    misunderstanding          to    delay       and     frustrate       the         basic

administration       of    justice        here.         She   certainly        did      not

expeditiously       seek   to      withdraw       her   plea[s]."         It     is     not

unreasonable for the court to reference how the impact of these

delays and the timing of the motion would cause substantial

prejudice to the State if Lopez were allowed to withdraw her

pleas.

      ¶85   Ultimately, on May 18, 2010, the court denied Lopez's

motion to withdraw her pleas.                   Because we afford the circuit

court deference when we review its determination, our focus is

on the circuit court's findings and conclusions.                          Indeed, the

record reflects that the circuit court appropriately considered

the     arguments    of    counsel,       the     language    of    the    rule,        the

audiovisual recordings themselves, and the pertinent case law.

The court did not deem the audiovisual recordings to be just one

more,     cumulative,      piece     of    evidence.          Instead,     the        court
concluded they were "compelling" and that proceeding to trial

without being able to admit them as Wis. Stat. § 908.08 evidence

would cause the State substantial prejudice.

      ¶86   The test for substantial prejudice that Lopez espouses

is whether the State might still be able to prove guilt beyond a

reasonable doubt without admitting the audiovisual recordings

under Wis. Stat. § 908.08.             The test, however, is not as Lopez

wishes.     The test is whether the State would be substantially
prejudiced if Lopez were allowed to withdraw her pleas.                                 The
                                           41
                                                                      No.      2011AP2733-CR



substantial prejudice that would result in this case is that the

State would lose the ability to admit significant, persuasive,

"compelling" evidence that would otherwise have been admissible

under § 908.08 at trial.             The circuit court did not find Lopez's

arguments compelling, and neither do we.

      ¶87    Simply stated, Lopez now argues that the State is not

substantially       prejudiced.         Lopez     opines       that      the     State    has

enough    other     evidence    and    that     the    State      does     not     need   the

audiovisual recordings to prove her guilty beyond a reasonable

doubt.      Lopez concludes that the audiovisual recordings would

otherwise     be    partially    admissible        and      that,     in    that     limited

form,    they      are    sufficient.           Conveniently,         Lopez's        defense

strengthens as the quantity and quality of the State's evidence

weakens.      Notably, even though the recordings were played as

Wis. Stat. § 908.08 audiovisual recordings at Olivas' trial, the

jury in that case still returned a verdict of not guilty on

three counts.         Lopez's assertion that the State's case is strong

enough      without      the   § 908.08     recordings         is     simply        not   the
applicable legal standard.

      ¶88    The plain language of Wis. Stat. § 908.08 should mean

something.         Section 908.08 makes no room for admission of the

recordings      once     the   child      turns       age   16.        If      audiovisual

recordings could otherwise be deemed admissible and presented to

the jury in the same way regardless of age, the limitations and

the     factors       listed    in     § 908.08(4)          would      be      of     little




                                           42
                                                                     No.      2011AP2733-CR



significance.16         While it is true that portions of the recordings

could be deemed admissible at trial, that outcome is far from

certain.       Even if they were so admitted, the fact remains that

once    A.O.    turned      age     16,   the    recordings      would   no    longer      be

admissible in their entirety, both aurally and visually, without

interruption          and    without      limitation,       as     would      have       been

permitted under § 908.08 pursuant to the court's ruling.                                  No

other evidentiary provision allows for these recordings to be

viewed and heard by the jury in the manner envisioned under

§ 908.08.           When the State lost the ability to introduce the

recordings under § 908.08, it was substantially prejudiced.

       ¶89     Wisconsin Stat. § 908.08 was enacted in response to

"epidemic levels of child abuse in Wisconsin."                             7 Daniel D.

Blinka, Wisconsin Practice Series: Wisconsin Evidence § 808.1,

at 884 (3d ed. 2008).                  The purpose of the law was to "allow

children       to    testify      in   criminal      [proceedings] . . . in          a    way

which       minimizes       the    mental   and       emotional    strain       of   their

participation         in    those      proceedings."       Id.,     at     884-85;       1985
Wisconsin Act 262 § 1.                 If Lopez were allowed to withdraw her

       16
       While audiovisual recordings of children that do not meet
certain requirements of Wis. Stat. § 908.08 may be deemed
admissible under hearsay exceptions, see, e.g., § 908.08(7),
State v. Snider, 2003 WI App 172, 266 Wis. 2d 830, 668
N.W.2d 784, this does not mean that such recordings are
automatically admissible, nor does it mean that the recordings
would be played in the same manner as allowed under § 908.08.
No guaranty of admissibility applies to the other hearsay
exceptions.   Audiovisual evidence admitted outside of § 908.08
would be presented in a manner consistent with the hearsay
exceptions, which are not likely to permit a party to simply
play the recording in its entirety for the jury.

                                                43
                                                                  No.    2011AP2733-CR



pleas,      the   State     could      no    longer     admit     the    audiovisual

recordings under § 908.08 and, thus, the purpose of the statute

would be frustrated.             Contrary to the purpose of the law, if

Lopez were allowed to withdraw her pleas, A.O.'s "mental and

emotional strain" would be maximized rather than minimized.

      ¶90    Conveniently, it is Lopez who now wishes to put the

State to its burden to prove each and every element of the

offenses charged beyond a reasonable doubt.                      While putting the

State to its proof was her absolute right before she entered her

pleas of no contest, once she entered her pleas she no longer

automatically has the right to proceed to trial.                        See Jenkins,

303 Wis. 2d 157, ¶32.            Rather, now that Lopez has entered her

pleas, the court is endowed with discretion to decide whether

Lopez had shown a "fair and just reason" for the withdrawal, and

whether      allowing      her    to   withdraw       her   pleas       would   cause

"substantial prejudice" to the State.                 Id., ¶2.

      ¶91    We conclude that the circuit court indeed applied the

appropriate test to the case at issue when it stated "[it is]
the   State's     burden    to    prove     that   allowing      the    defendant   to

withdraw her plea would result in substantial prejudice to the

State."      The court      personally       viewed the recordings and had

concluded that they were admissible.                  The court concluded that

the recordings were lengthy, compelling, timely, and credible:

           In this case the Safe Harbor tapes taken of the
      victim [A.O.] are lengthy.    If I remember correctly
      they're about three-and-a-half hours long.   They are
      compelling.   The testimony in the tape is credible.
      It's recent to when the events occurred.          The
      testimony is specific. Clear.

                                            44
                                                                   No.     2011AP2733-CR



      ¶92     The circuit court considered whether the passage of

time would impact A.O.'s ability to convey the same message at

trial.      The State argued that the significant passage of time

caused it substantial prejudice because, in part, memories fade:

      Over the nearly two years that have elapsed, or to be
      more accurate, 20 months that have elapsed since the
      recordings  were   made,  memories  do   fade.  Those
      recordings include the description of incidents that
      took place close to six months in some cases even
      before the recordings were made as the information
      alleges that some of this conduct was alleged to have
      taken place as early as April of 2008, so the
      incidents occurred as early as in some cases as two
      years ago.
The   State     further      asserted        that    it   would   be     substantially

prejudiced because A.O. could not now present herself as the

terribly abused child reflected in the recordings:

           Not only the issue of accuracy and accurate
      reflection of memory that is preserved in those tapes,
      but also those tapes are demonstrative of [A.O.'s]
      state, her physical state and her emotional state at
      the time that they were made. Her demeanor, which is
      essential to credibility determination, which is an
      essential function of course of a jury, or trier of
      fact, are lost if we cannot present those recordings.
      In those recordings she looks like a terribly abused
      child that she was.
      ¶93     Seeming   to      track    the      State's   argument,      the   court

concluded that the State was substantially prejudiced because

the   victim    would     not   now     be    able   to   replicate      the   recorded

testimony at trial:

      I think there's a real risk that she has, in fact,
      again just given the passage of time and the clarity
      and specificity of her testimony there's no way that
      she could ever be expected to reproduce the testimony


                                             45
                                                                No.    2011AP2733-CR


    she gave in the Safe Harbor tapes and she shouldn't be
    forced to, . . . .
    ¶94   In     addition    to     the      passage    of     time,   the      court

reasonably     considered    how    A.O.'s       therapy     would     impact     her

ability to testify at trial, and thus prejudice the State.                        The

State argued that A.O.'s progress in therapy meant that she

would not present the same testimony at trial:

    Fortunately for her now, she's doing very well                        and
    looks great and that's not the same presentation                     that
    would be made at trial at this point in time.                          It
    wouldn't accurately reflect how she appeared at                       the
    time and that is a substantial prejudice that                         the
    State would suffer.
    ¶95   The     court     apparently         agreed   with    the    State     and

concluded:

          I have to believe that part of [A.O.'s] therapy
    and recovery from everything that happened to her has
    included a need to forget somewhat, to move on, to
    move forward, to try to make the best of the future
    life in an attempt to overcome the harm that was done
    to her.    If she is indeed successful in her recovery
    and therapy, then hopefully some of the things she's
    already forgotten.    I hope for her sake that's the
    case.
    ¶96   The     State      further         argued     that     it     would      be

substantially     prejudiced       if     it    lost    these    contemporaneous

recordings, as they are the most accurate testimony available:

         She was 14 years old at the time that she was
    found. She was interviewed days after she was rescued
    and the video recordings are now close to 20 months
    old.    She was a child witness.      And those video
    recordings are precluded from being admitted because
    she turned 16 a few days ago. Those video recordings
    are the most accurate testimony available of what
    happened of her view at that point in time.



                                        46
                                                             No.    2011AP2733-CR



    ¶97     The circuit court agreed that, given her age, A.O.

would not appear to be the same victim at trial:

    The age of the victim as reflected in the tapes is
    significant.   And today if she was forced to testify
    of the passage of time from when the events occurred
    is significant here.
    ¶98     Thus, the court did weigh and consider whether the

State would be substantially prejudiced if it were required to

rely on A.O. as a witness without being able to present the

recordings under Wis. Stat. § 908.08.           The court determined that

these    recordings    were    compelling     and    powerful.      The    court

concluded that substantial prejudice would befall the State if

it were required to proceed without being able to introduce the

recordings under § 908.08.           The court found that A.O. would be

unable to convey the same message at trial without the § 908.08

presentation.     The passage of time and the State's inability to

introduce the audiovisual recordings under § 908.08 constituted

substantial prejudice.          The court concluded         that it was "an

absolutely     clear   and    easy    call"   that    the   State     would   be

substantially prejudiced if Lopez were allowed to withdraw her

pleas.     The court's conclusions regarding the impact on the

victim were reasonable.          Losing the ability to introduce the

recordings under § 908.08 would not merely result in the same

testimony being presented in a different form, but the State

would be substantially prejudiced because, as the State put it:

"central to this trial and central to the evidence in this case

are the video recorded statements taken by detectives at Safe
Harbor    of   [A.O.],   the    principal     victim, . . . ."            Without

                                       47
                                                                      No.        2011AP2733-CR



admitting the recordings as envisioned under § 908.08, the State

was   left    with     a    completely          different       and   less       compelling

presentation of its evidence.

      ¶99    Indeed,       as     part     of     its     determination            regarding

substantial prejudice, the court considered relevant case law,

and correctly concluded that the State would be substantially

prejudiced if Lopez were allowed to withdraw her pleas:

      [L]ike the finding by the trial court in the Bollig
      case and the Rushing case that I referred to, because
      the State would face substantial prejudice to not be
      allowed to use the Safe Harbor tapes, the defendant's
      motion to withdraw her plea is denied.
      ¶100 In Bollig and Rushing, the trial court determinations

of substantial prejudice to the State were upheld by this court

and   the    court     of       appeals     respectively.             The        substantial

prejudice in Bollig and Rushing did not occur because the State

lost the ability to introduce an audiovisual recording of the

victim taken at a time nearly contemporaneous with the alleged

offenses.       The    substantial         prejudice       in    Bollig      and     Rushing

resulted from the fact that the victim's memory would likely

have faded given a delay.                In the case at issue, not only does

the State suffer the kind of prejudice which results from a

delay impacting the victim's memory, but here the State suffers

the additional loss of                significant, persuasive,              "compelling,"

audiovisual     evidence        that     would    otherwise      have     been      admitted

under Wis. Stat. § 908.08.

      ¶101 In    Bollig         the    defendant        pled    guilty      to     attempted
sexual contact with a child under the age of 13 in violation of


                                            48
                                                              No.    2011AP2733-CR



Wis. Stat. §§ 939.32(1) and 948.02(1) (1995-96).                     Bollig, 232

Wis. 2d 561, ¶3.      Seven months later, prior to sentencing but

after having learned that he would be required to register as a

sex offender, the defendant moved the                court   to     withdraw his

plea.      Id.,   ¶¶6-7.      The     circuit    court   concluded     that    the

defendant's misunderstanding regarding sex offender registration

did constitute a "fair and just reason" for plea withdrawal.

The court went further, however, to explain that even if this

did     constitute   such    a   reason,       the   State   would     still   be

substantially     prejudiced     if     the     defendant    were    allowed    to

withdraw his plea.         Id., ¶¶6-7, 31-33.        The circuit court found

substantial prejudice in that it would:

      soon be 2 years since the event occurred, and one,
      that has been a long time hanging over the head of the
      victim, secondly, the victim is a child, long time to
      expect evidence and testimony recollections to remain
      fresh, so that any trial that would be held at this
      late date might not, would not be fair to the victim,
      would not be fair to the state.
State v. Bollig, 224 Wis. 2d 621, 640, 593 N.W.2d 67 (Ct. App.

1999).17

      ¶102 On appeal, this court agreed that the State would be

substantially prejudiced because the defendant's plea withdrawal

"would hamper the victim's ability to recall pertinent events."

Bollig, 232 Wis. 2d 561, ¶43.                As in the case at issue, the

child victim in Bollig was available to testify, but the passage


      17
       The quotation of the trial court record is included in
the court of appeals decision, but not in the opinion of this
court.

                                        49
                                                                               No.     2011AP2733-CR



of   time           would     have    rendered          the        victim's     testimony      less

persuasive and, therefore, constituted substantial prejudice to

the State.                Unlike the case at issue, however, in Bollig the

State         did    not    lose     the   ability           to    introduce    an     audiovisual

recording of the child victim under Wis. Stat. § 908.08.                                      Here,

the State would not only be prejudiced by the delay's impact on

the testimony, as in Bollig, but in the case at issue, the State

would         also     lose    the     ability          to        introduce    the     audiovisual

recordings under § 908.08.

         ¶103 In Rushing the substantial prejudice to the State was

not due to the State losing the ability to admit audiovisual

evidence, but rather, as in Bollig, it was due to the likely

impact the delay would have on the victim's testimony.                                          The

defendant in Rushing pled guilty to first-degree sexual assault

of   a        child,       contrary     to      Wis.     Stat.        § 948.02(1)       (2004-05).

Rushing,        305        Wis. 2d 739,      ¶1.         Ten       months     later,    but   still

before sentencing, the defendant sought to withdraw his plea.18

The circuit court denied the defendant's motion, concluding that
allowing            the     defendant      to     withdraw           his    plea     would    cause

substantial prejudice to the State.                                 The court noted that a


         18
       The substantial time between the entry of the defendant's
plea and his plea withdrawal is accounted for by an unusual
procedural issue.     Two months after his plea hearing, the
defendant proclaimed his innocence during the presentence
investigation interview.    On learning this, the circuit court
vacated the defendant's plea sua sponte.       Six months later,
acknowledging that the vacatur was improperly entered, the court
reinstated the defendant's plea. It was at this point that the
defendant filed his formal plea withdrawal motion.

                                                   50
                                                                              No.     2011AP2733-CR



video       interview       of   the    child,      which     the        State      intended     to

introduce         at    trial,    was       "'reflective          of    a     [sic]      extremely

difficult child,' who 'appeared to be very reluctant, very hard

to interview, very hyperactive, very unwilling to engage in the

facts and circumstances in an——any substantial way.'"                                    Id., ¶9.

Considering the passage of time, the court stated "'[w]e're now

more than a year and a half away from the actual incident, and

according to the affidavit provided by the State, his memory has

clearly been impaired, and that's easy to understand, when one

sees the videotape.'"                 Id.     The court concluded that, despite

the     fact       that    the   video       recording       would          still     have     been

admissible at trial, forcing the State to put this victim on the

stand       for     cross-examination          after        the        passage      of    such     a

substantial            amount    of     time        would     constitute              substantial

prejudice to the State.

       ¶104 The court of appeals agreed, concluding that the faded

memory of a victim could result in less persuasive testimony,

and thus cause substantial prejudice to the State.                                  Rushing, 305
Wis. 2d 739, ¶16.            Like the case at issue, in Rushing the State

had     a    fairly       contemporaneous           audiovisual          recording        of     the

victim.          Unlike the case at issue, however, the State in Rushing

would not have been precluded from introducing that video at

trial       if    the     defendant     were    allowed       to        withdraw       his     plea.

Nonetheless, the court of appeals affirmed the circuit court's

determination that the State would be substantially prejudiced,

even    though,         unlike   the    case    at    issue,       the        State    would     not
otherwise         lose     the   ability       to    present           Wis.    Stat.      § 908.08
                                               51
                                                                No.   2011AP2733-CR



evidence.        Compare     State   v.   Nelson,    2005   WI    App   113,    282

Wis. 2d 502, 701 N.W.2d 32.19

     ¶105 In sum, the substantial prejudice to the State in the

case at issue encompasses not only the same kind of prejudice

found in Bollig and Rushing, but unlike those cases, the State

here also loses the ability to introduce audiovisual recordings

of the victim under Wis. Stat. § 908.08.                    Thus, the circuit

court's conclusion that "this is an absolutely clear and easy

call . . . to find that if the State was not allowed to use the

Safe Harbor tapes it would result in substantial prejudice to

the State" is quite defensible.

     ¶106 Here, the circuit court's determination that the State

would be substantially prejudiced is reasonable, consistent with

Wisconsin       precedent,     and   supported      by    the    record.        The

substantial prejudice to the State in this case would result not

only from the delay and faded memory of the victim, but also the

loss of significant, persuasive,               "compelling," and admissible

audiovisual evidence under Wis. Stat. § 908.08.                       The circuit
court     did   not   erroneously     exercise      its   discretion     when    it



     19
        In State v. Nelson the State alleged that it would be
substantially prejudiced if the defendant were allowed to
withdraw his pleas because it had "lost contact" with the
victim.   2005 WI App 113, ¶19, 282 Wis. 2d 502, 701 N.W.2d 32.
The State conceded that "at some point we probably would be able
to locate [the victim] again."    Id.  The court concluded that,
while the State "may have been somewhat inconvenienced" by the
withdrawal of the defendant's pleas, the State "failed to meet
its burden" to show substantial prejudice.      Id., ¶22.   These
facts are dramatically different than the case at issue here.

                                          52
                                                                    No.    2011AP2733-CR



concluded that the State would be substantially prejudiced if

Lopez were allowed to withdraw her pleas.

                                  V.      CONCLUSION

    ¶107 We hold that the circuit court did not erroneously

exercise its discretion when it determined that the State would

be substantially prejudiced if Lopez were allowed to withdraw

her pleas.      We sustain the discretionary determination of the

circuit   court       because    the   record    reflects     that        it    was   "the

product   of    a    rational    mental    process     by    which    the       facts   of

record    and   law     relied    upon    are    stated      and     are       considered

together for the purpose of achieving a reasoned and reasonable

determination."         Canedy, 161 Wis. 2d at 580.                 Accordingly, we

reverse the court of appeals.

    By    the       Court.—The    decision      of   the    court    of    appeals      is

reversed.




                                          53
                                                               No.    2011AP2733-CR.dtp


    ¶108 DAVID       T.         PROSSER,     J.    (concurring).            This    case

presents issues arising from a defendant's motion to withdraw

her no contest pleas before sentencing.                      Current law on plea

withdrawal before sentencing is summed up in paragraph 61 of the

majority opinion:

         "Withdrawal of a guilty plea before sentencing is
    not an absolute right." Jenkins, 303 Wis. 2d 157, ¶32
    (citing Canedy, 161 Wis. 2d at 583).      "[A] circuit
    court should 'freely allow a defendant to withdraw his
    plea prior to sentencing for any fair and just reason,
    unless   the  prosecution   [would]   be  substantially
    prejudiced.'"      Id.,    ¶2   (citing   Bollig,   232
    Wis. 2d 561, ¶28).   "[T]he burden is on the defendant
    to offer a fair and just reason for withdrawal of the
    plea" by a preponderance of the evidence. Canedy, 161
    Wis. 2d at 583-84.    "[O]nce the defendant presents a
    fair and just reason, the burden shifts to the State
    to show substantial prejudice so as to defeat the plea
    withdrawal." Bollig, 232 Wis. 2d 561, ¶34.

Majority op., ¶61 (brackets in original).
    ¶109 In Jenkins, this court observed that the state did not

argue that it would be substantially prejudiced by Jenkins' plea

withdrawal.      State v. Jenkins, 2007 WI 96, ¶2, 303 Wis. 2d 157,

736 N.W.2d 24.      "Therefore, the issues are whether Jenkins had a
fair and just reason to withdraw his plea and how a reviewing

court   should     review       the    circuit     court's    denial       of   Jenkins'

motion."      Id.         The    Jenkins     court   then     provided      a    lengthy

discussion    of    the    fair       and   just   reason    rule,    including      its

general principles and standard of review, its evolving history,

its application in general, and its application to the facts of

the Jenkins case.         Id., ¶¶28-91.
    ¶110 Here,       by    contrast,        "The   State     does    not    argue   that

Lopez failed to present a fair and just reason to withdraw her
                                             1
                                                                     No.   2011AP2733-CR.dtp


pleas."     Majority op., ¶3.             Thus, the majority opinion "focuses

on     whether    the      circuit        court       erroneously          exercised     its

discretion in concluding that the State would be substantially

prejudiced if Lopez were allowed to withdraw her pleas."                           Id.

       ¶111 In my view, three courts (including this court) have

been    forced    to     struggle        with       whether    the    defendant's      plea

withdrawals would substantially prejudice the State because they

have tried to apply an obsolete rule.                              Although I join the

majority opinion, I write separately to suggest that the fair

and just reason rule should be reexamined and revised so that a

defendant    is        required    to     meet        a    higher     burden     for   plea

withdrawal before sentencing than the burden under current law.

The fair and just reason rule is outmoded because it fails to

account for nearly a half century of criminal justice reforms

and    because    it    often     has    no     relation      to    fairness    toward   or

prejudice to the defendant who is seeking to withdraw a plea.

Circumstances today are different from circumstances existing

when the fair and just reason rule was adopted.                               The fair and
just reason rule warrants reconsideration because it lacks a

sound    policy    basis     and        minimizes         important    protections       for

defendants in the criminal justice system.

                          I. FAIR AND JUST REASON RULE

       ¶112 As stated in Jenkins, 303 Wis. 2d 157, ¶¶37-41, this

court adopted the fair and just reason rule in 1967.                             See State

v. Reppin, 35 Wis. 2d 377, 151 N.W.2d 9 (1967).                             The rule was

derived    from    the     American       Bar       Association       (ABA)    Project   on



                                                2
                                                                     No.   2011AP2733-CR.dtp


Minimum Standards for Criminal Justice——Pleas of Guilty § 2.1

(Tentative Draft, Feb. 1967).

       ¶113 Most         of   § 2.1   dealt    with     the    withdrawal            of   guilty

pleas after sentencing.               Section 2.1(a) of the tentative rule

read       in    part    as   follows:     "(a)   The    court       should          allow    the

defendant to withdraw his plea of                     guilty or nolo contendere

whenever the defendant, upon a timely motion for withdrawal,

proves          that    withdrawal    is   necessary      to    correct          a     manifest

injustice."            Id. (emphasis added).

       ¶114 The          language     in      paragraph        (a)     included             three

significant words or phrases: (1) "should"; (2) "timely"; and

(3) "manifest injustice."                  All three terms implicate judicial

discretion          following    judicial      fact-finding.               The       rule    used

"should," not "shall," signaling discretion.                          The rule pointed

to "timely" motions to withdraw a plea, meaning that there was

no admonition to the court to grant untimely motions.                                "Manifest

injustice" was a concept requiring development, some of which

the ABA spelled out in several subparagraphs of paragraph (a).1



       1
       A court should allow a defendant to withdraw his plea due
to a manifest injustice when the defendant proves:

             (1) he was denied the effective assistance of
       counsel guaranteed to him by constitution, statute, or
       rule;

            (2) the plea was not entered or ratified by the
       defendant or a person authorized to so act in his
       behalf;

            (3) the plea was involuntary, or was entered
       without knowledge of the charge or that the sentence
       actually imposed could be imposed; or

                                              3
                                                            No.   2011AP2733-CR.dtp


    ¶115 Paragraph (b) of the rule then provided:

         In the absence of a showing that withdrawal is
    necessary to correct a manifest injustice, a defendant
    may not withdraw his plea of guilty or nolo contendere
    as a matter of right once the plea has been accepted
    by the court.     Before sentence, the court in its
    discretion may allow the defendant to withdraw his
    plea for any fair and just reason unless the
    prosecution has been substantially prejudiced by
    reliance upon the defendant's plea.
Id. (emphasis added).

    ¶116 The last sentence in paragraph (b) appears almost as

an afterthought.       The sentence clearly established more lenient

criteria    for   plea    withdrawal       before    sentencing,      as   though

neither the state nor the defendant had much of a stake in a

defendant's plea before sentencing, but the sentence did include

the word "may" and the phrase "in its discretion."

    ¶117 In February 1968 the ABA issued an Approved Draft of

the Standards Relating to Pleas of Guilty.                  This court applied

the Approved Draft in Libke v. State, 60 Wis. 2d 121, 128-29,

208 N.W.2d 331 (1973) and Dudrey v. State, 74 Wis. 2d 480, 482,

247 N.W.2d 105 (1976), except that the court substituted the

word "should" for the word "may" in each case.

    ¶118 In effect, the court reworded the ABA rule to read:

"Before    sentence,     the   court   should       allow   the    defendant    to


         (4) he did not receive the charge or sentence
    concessions contemplated by the plea agreement and the
    prosecuting attorney failed to seek or not oppose
    these concessions as promised in the plea agreement.

American Bar Association (ABA) Project on Minimum Standards for
Criminal Justice——Pleas of Guilty § 2.1(a)(ii)(1)-(4) (Tentative
Draft, Feb. 1967).

                                       4
                                                                     No.   2011AP2733-CR.dtp


withdraw his plea for any fair and just reason unless . . . ."

In   Dudrey,    the    court      not    only       removed       the      words     "in    its

discretion may" but also added the adverb "freely"——e.g., plea

withdrawal     "should      be    freely          granted       prior    to    sentencing."

Dudrey, 74 Wis. 2d at 482 (emphasis added).2

      ¶119 Wisconsin        had   a     limitation,         however,          that   did   not

appear    in   the    ABA   rule.        In    1969       the    Wisconsin      Legislature

revised the Wisconsin criminal procedure code.                                 The revision

created a new Wis. Stat. § 971.08(2) that read, "The court shall

not permit the withdrawal of a plea of guilty or no contest

later than 120 days after conviction."                          § 63, ch. 255, Laws of

1969.      This      limitation         was       later     deemed       regulatory,        not

mandatory,     in     State      v.     Lee,       88     Wis. 2d 239,         246-47,      276

N.W.2d 268 (1979), but the court still noted that it was not

"inappropriate for the state to object to the consideration of a

motion    to   withdraw     a    plea    that       was    brought       beyond      the   time

prescribed     by    statutory        regulation. . . .                 [E]ntertaining       an

untimely motion to withdraw a plea would ordinarily constitute
an abuse of discretion."              Id. at 247.



      2
       "In 1979 the ABA standard was revised to read as follows:
'After entry of a plea of guilty or nolo contendere and before
sentence, the court should allow the defendant to withdraw the
plea for any fair and just reason unless the prosecution has
been substantially prejudiced by reliance upon the defendant's
plea.'" State v. Jenkins, 2007 WI 96, ¶40, 303 Wis. 2d 157, 736
N.W.2d 24 (quoting State v. Canedy, 161 Wis. 2d 565, 581, 469
N.W.2d 163 (1991)).

     Thus, this court adopted "should" six years before the ABA,
and it added the adverb "freely," which does not appear in the
ABA rule.

                                              5
                                                               No.    2011AP2733-CR.dtp


    ¶120 In        1984     the     legislature         repealed           Wis.     Stat.

§ 971.08(2).       1983     Wis.    Act   219,       § 43.     This        removed       any

explicit    time   limitation       between      a    defendant's          plea    and    a

defendant's    sentence      during    which     a    defendant      could        move   to

withdraw a plea.

    ¶121 In sum, since 1967, Wisconsin law has often appeared

to be moving to make it ever easier for a defendant to withdraw

a plea before sentencing at the same time it was making the

process of taking a plea more complex and more difficult.                            This

inconsistency is too blatant to ignore.

                    II. CHANGES IN CRIMINAL PROCEDURE

    ¶122 When the ABA adopted its rule on plea withdrawal in

1967, it stated that the "process [of taking pleas before a

trial] has received relatively little attention as compared to

the actual trial of criminal cases."                    ABA Project on Minimum

Standards    for   Criminal       Justice——Pleas       of    Guilty    5     (Tentative

Draft, Feb. 1967).         As a result, "the practices in cases which

are disposed of without trial are far from uniform."                        Id.     Thus,
the objective of the proposed rule on plea withdrawal——designed

for the entire nation——was not "to bring about a substantial

shift away from the practice whereby trial-avoiding pleas are

obtained and accepted.             Rather, the attempt is to formulate

procedures     which      will    maximize     the     benefits       of     conviction

without trial and minimize the risks of unfair or inaccurate

results."    Id. at 3 (emphasis added).




                                          6
                                                           No.   2011AP2733-CR.dtp


      ¶123 Preservation of Wisconsin's "any fair and just reason

rule" disregards the sea changes in criminal procedure since the

late 1960s.3    Some of these changes are noted below.

                    A. Defendant's Right to Counsel

      ¶124 Section 1.3 (Aid of counsel; time for deliberation) of

the   ABA's    Tentative   Standards       Relating   to    Pleas    of   Guilty

provided in part that:

           (a) A defendant should not be called upon to
      plead until he has had an opportunity to retain
      counsel or, if he is eligible for appointment of
      counsel, until counsel has been appointed or waived.
      A defendant with counsel should not be required to
      enter a plea if his counsel makes a reasonable request
      for additional time to represent the defendant's
      interests.




      3
       The current state of criminal procedure makes a lenient
plea withdrawal standard unnecessary.  Detailed plea colloquies
seemed to influence the federal rule's shift [former Fed. R.
Crim. P. 32(d), present Fed. R. Crim. P. 11(d)(2)(B)] from
allowing plea withdrawal unless the government could show
prejudice to allowing withdrawal only if the defendant could
show a fair and just reason.

      Given the great care with which guilty pleas are now
      taken——including placing the plea agreement on the
      record, making full inquiry into the voluntariness of
      the plea, advising the defendant in detail concerning
      his   rights  and   the  consequences   of  his   plea,
      determining that the defendant understands these
      matters, and determining that the plea is accurate——
      there is no reason to view pleas so taken as merely
      "tentative," subject to withdrawal before sentence
      whenever the government cannot establish prejudice.

5 Wayne R. LaFave et al., Criminal Procedure § 21.5(a), at 868
(3d ed. 2007) (internal footnote omitted). The view that pleas
are merely "tentative" until after sentencing is inconsistent
with contemporary practice.

                                       7
                                                                      No.    2011AP2733-CR.dtp


       ¶125 These principles, which appear so fundamental today,

were not nationally recognized until the 1960s and 1970s.                                     It

must be remembered that in Betts v. Brady, 316 U.S. 455 (1942),

the United States Supreme Court determined that even though an

indigent defendant requested counsel, the law did not require

that defendants be appointed an attorney in all cases.                                  Id. at

457,    473.      The        Supreme       Court      reconsidered          the    issue      and

overruled Betts in 1963.                   Gideon v. Wainwright, 372 U.S. 335,

339 (1963).           In Gideon, the Supreme Court determined that a

defendant has the right to an attorney, even if he cannot afford

one.      Id.    at    344        ("[I]n    our     adversary      system         of   criminal

justice, any person haled into court, who is too poor to hire a

lawyer,      cannot     be    assured       a     fair     trial     unless       counsel     is

provided for him.            This seems to us to be an obvious truth.").

The right to counsel spans the spectrum of criminal offenses for

which a defendant may be imprisoned, from felony to misdemeanor,

and no defendant may be imprisoned if he has been denied the

right   to     counsel.           Argersinger         v.   Hamlin,     407    U.S.      25,   37
(1972).

       ¶126 Argersinger             (involving         the    right     to        counsel     in

misdemeanor cases) was not decided until five years after the

tentative ABA rule on plea withdrawal was issued.                            See id.

       ¶127 In sharp contrast, Wisconsin has recognized a criminal

defendant's      right       to    counsel      for    more   than     150     years.         See

Carpenter v. Cnty. of Dane, 9 Wis. 249 (*274) (1859).                                  "Section

7 of art. I., of the constitution of this state, and § 2 of
chap. 164, R. S., 1859, humanely and wisely provide that in all

                                                8
                                                                No.    2011AP2733-CR.dtp


criminal prosecutions, the accused shall enjoy the right to be

heard by himself and counsel . . . ."                    Id. at 251 (*275-76); see

also State ex rel. Traister v. Mahoney, 196 Wis. 113, 122, 219

N.W. 380 (1928) ("The right of any one accused of a criminal

offense    to     be      heard       by    counsel      is   guaranteed        by   our

constitution,      art.    1,     sec.     7.").        Carpenter     determined     that

circuit    courts      have     the    power      and   the   duty    to   appoint    an

attorney for a defendant who cannot afford one, and the attorney

may recover his fees from the county.                    Carpenter, 9 Wis. at 252-

53 (*277-78).       The court in Carpenter reasoned that "it would be

a reproach upon the administration of justice, if a person, thus

upon   trial,     could    not    have      the    assistance    of    legal    counsel

because he was too poor to secure it."                   Id. at 251 (*275).

       ¶128 Reference in the 1967 ABA standards to the right to

counsel helps to place the plea withdrawal rule in historical

context.        Today,    failing      to    provide      counsel     to   an   indigent

defendant or ineffective assistance of counsel to a defendant

would provide compelling reasons to withdraw a plea before or
after sentencing.         However, these sound reasons are not present

in this case.

             B. Defendant's Right to Make Plea Decision

       ¶129 Section 3.2 (Relationship between defense counsel and

client) of the 1967 ABA standards reads in part: "(a) Defense

counsel should conclude a plea agreement only with the consent

of the defendant, and should ensure that the decision whether to

enter a plea of guilty or nolo contendere is ultimately made by
the defendant."

                                             9
                                                                 No.   2011AP2733-CR.dtp


      ¶130 In    Wisconsin,        the      decision    to    plead    guilty       or    no

contest must be made personally by the defendant.                                 State v.

Burns, 226 Wis. 2d 762, 771, 594 N.W.2d 799 (1999), and normally

a defendant will be asked on the record how she pleads so that

her decision is expressly and personally stated on the record.

As   will   be   noted        below,    these      principles    do    not    help       the

defendant in this case.

            C. Plea Questionnaire and Waiver of Rights Form

      ¶131 This       court     has    attempted       to    assure    that       criminal

defense attorneys conscientiously represent their clients.                               One

effective tool is the plea questionnaire.                       Plea questionnaires

and waiver of rights forms serve as checklists for attorneys and

defendants, in an effort to provide reasonable certainty that

all critical issues will be discussed during the attorney-client

relationship before the defendant enters a plea.

      ¶132 In     all    probability,           plea   questionnaires         were       not

widely    used   in     the    1960s.        The    first    reference       to    a    plea

questionnaire     in     a    Wisconsin      Supreme    Court    decision         did    not
appear until 1986.             State v. Carter, 131 Wis. 2d 69, 73, 389

N.W.2d 1 (1986) (referring to a 1983 Milwaukee County form).

The Wisconsin Court Records Management Committee appears not to

have developed a uniform form for the state until June of 1998.

      ¶133 Today's plea questionnaires are very detailed and may

include     parallel     text     in    a   different       language    to    assist       a

defendant who is not fluent in English.                       The Spanish language

questionnaire used by Minerva Lopez (Lopez) was first published
in January 2006.

                                            10
                                                                    No.    2011AP2733-CR.dtp


                        D. Comprehensive Plea Colloquies

       ¶134 Notwithstanding              a    defendant's     representation          by    an

attorney and the defendant's likely use of a plea questionnaire,

this court has supplemented the plea requirements of Wis. Stat.

§ 971.08        and     mandated         an    extensive,        time-consuming            plea

colloquy, State v. Brown, 2006 WI 100, ¶35, 293 Wis. 2d 594, 716

N.W.2d 906;         State     v.   Bangert,      131   Wis. 2d 246,         389    N.W.2d 12

(1986),        to     reinforce      a       defendant's     understanding          of     the

circumstances with respect to his case, court procedure, and the

law,     and    to     assure       that      any   plea    he    makes      is    knowing,

intelligent, and voluntary.

       ¶135 The Brown court hailed the importance of the landmark

Bangert decision and quoted heavily from it.                              The Brown court

explained:

       To   head   off   postconviction   hearings                         on      plea
       withdrawals, the [Bangert] court said:

                    We reiterate that the duty to comply
               with the plea hearing procedures falls
               squarely on the trial judge. We understand
               that    most   trial    judges   are   under
               considerable calendar constraints, but it is
               of paramount importance that judges devote
               the time necessary to ensure that a plea
               meets the constitutional standard. The plea
               hearing colloquy must not be reduced to a
               perfunctory exchange. It demands the trial
               court's "utmost solicitude."
Brown,    293       Wis. 2d 594,      ¶33      (quoting     Bangert,       131    Wis. 2d at

278-79).              "Such        solicitude       will      serve        to      forestall

postconviction         motions,       which     have   an    even     more       detrimental

effect on a trial court's time limitations than do properly



                                               11
                                                                 No.   2011AP2733-CR.dtp


conducted plea hearings."               Id. (quoting Bangert, 131 Wis. 2d at

279).

      ¶136 Plea colloquies of great length and detail simply did

not   exist     at    the    time     the    guilty    plea   withdrawal        rule   was

adopted.        Today       it   is   counterproductive       to      require    circuit

courts to adhere to the comprehensive plea colloquy outlined in

Brown and then to instruct them that plea withdrawals should be

freely granted prior to sentencing for any fair and just reason.

      ¶137 If a defendant's plea is not knowing, intelligent, and

voluntary, the plea constitutes a "manifest injustice" and the

defendant may withdraw the plea before or after sentencing.                            If

the defendant was denied the effective assistance of counsel,

the defendant may withdraw the plea before or after sentencing.

State v. Bentley, 201 Wis. 2d 303, 311, 548 N.W.2d 50 (1996);

State v. Rock, 92 Wis. 2d 554, 558-59, 285 N.W.2d 739 (1979).

Grounds for "manifest injustice" enumerated in the original ABA

Project    on    Minimum         Standards     for    Criminal    Justice——Pleas        of

Guilty § 2.1 (Tentative Draft, Feb. 1967) or in the revised ABA
Standards       for     Criminal            Justice——Pleas       of    Guilty      § 14-

2.1(b)(i)(A)-(D)4 (3d ed. 1999), and any "manifest injustice"

found in Wisconsin case law justifying plea withdrawal after

sentencing would permit plea withdrawal before sentencing.

      ¶138 In my view, the court should not permit a defendant to

withdraw a plea before sentencing unless the defendant is able

to prove a manifest injustice, provided that the defendant has

      4
       The grounds for manifest injustice in ABA Standards for
Criminal Justice——Pleas of Guilty § 14-2.1(b)(i)(E)-(F) (3d ed.
1999) are inapplicable under Wisconsin law.

                                              12
                                                                No.   2011AP2733-CR.dtp


been accorded the rights and procedural protections in relation

to pleas that have been enshrined in our law.                    Our system should

always seek to promote the fair treatment of defendants, but it

should not be captive to manipulation by defendants.

                       III. LOPEZ'S PLEA WITHDRAWAL
       ¶139 The facts in this case undermine the claim of a fair

and just reason for the defendant to withdraw her pleas.

       ¶140 On    October    2,   2008,    the     State    issued      a   complaint

charging Lopez with 15 counts of various forms of child abuse.

Lopez waived the preliminary examination and was bound over for

trial.

       ¶141 The State filed an information and Lopez was arraigned

on November 3, 2008.

       ¶142 On July 24, 2009, the State amended the information so

that   Lopez     was    charged   with    22    counts     of    criminal     conduct

related to her daughter.

       ¶143 On November 19, 2009, the defendant accepted a plea

bargain and entered pleas of no contest to six counts of the
information, namely, Counts 1, 8, 12, 15, 18, and 21.                       Counts 2,

3, 4, 5, 6, 7, 9, 10, 11, 13, 14, 16, 17, 19, 20, and 22 were

dismissed and read in, and one sentence enhancer was dismissed.

       ¶144 The court conducted multiple hearings following the

defendant's initial appearance.               The court engaged interpreters

for all these hearings.           The defendant was represented by three

attorneys——Taavi McMahon, Andrew Martinez, and Mark Maciolek——

all of whom spoke Spanish and all of whom sought to withdraw
from     the   case     because   of     alleged     dissatisfaction          by   the

                                         13
                                                                No.   2011AP2733-CR.dtp


defendant.5       Attorney Maciolek represented Lopez from April 17,

2009, through her plea hearing on November 19, 2009, until March

23, 2010.        In short, Attorney Maciolek represented Lopez for

seven months before Lopez entered a plea.

     ¶145 The defendant had more than a year to think about her

case prior to her plea.            The court set a date for trial at a

scheduling hearing on August 13, 2009——three months before the

plea——and       it   informed     the     parties        then   that       no     further

continuances would be permitted.               The defendant knew for two

months before her plea that the State would be able to use the

Safe Harbor videotapes of interviews with her daughter if the

case went to trial.

     ¶146 After         Judge   Stuart    Schwartz       retired      on   October     2,

2009,    the    Lopez    case   was   assigned      to    Circuit     Judge       Stephen

Ehlke.     The defendant promptly filed a motion for substitution.

When a new judge, Nicholas J. McNamara, was assigned, he denied

the defendant's motion for a 30-day extension.                         The defendant

suddenly pled the next day.
     ¶147 As noted above, Attorney Maciolek and the defendant

went over a four-page plea questionnaire in Spanish as well as

English.       Lopez signed the document.           She indicated that she was

33 years old, had 12 years of schooling, and had reviewed the

entire     document      with   her     attorney.         She    signed         her   name

immediately below the statement: "Pido al juez que acepte mi




     5
       Attorney Maciolek was not permitted to withdraw until well
after the plea.

                                          14
                                                         No.   2011AP2733-CR.dtp


declaración y me declare culpable."             (I am asking the court to

accept my plea and find me guilty).

      ¶148 At Lopez's plea hearing, Judge McNamara conducted a

textbook plea colloquy.6          He read the six counts to which she

pled, one at a time, and accepted the defendant's plea on each

charge, asking follow-up questions to ensure that the defendant

understood the implications of the pleas.

      ¶149 The defendant was responsive to the court's questions.

She once spoke up saying that she did not understand, and the

court rephrased the question.           The defendant acknowledged that

she had gone over the Spanish language plea questionnaire with

her attorney.      "[A]re you confident that you understood all of

the   questions    and     the    information    contained     on   the     plea

questionnaire     and    waiver   of   rights   form?"   the    court     asked.

"Yes, Your Honor," she replied.

      ¶150 Another time, the court asked: "Right now of course

you're receiving a translation.             Are you satisfied with the

      6
       At a motion hearing May 10, 2010, Judge McNamara made the
following comment:

      As counsel well knows I'm not only a relatively new
      judge to the bench, but relatively new to the world of
      criminal cases.   And as such I can honestly say that
      in such things as taking a plea, it's been my absolute
      effort and intention to be very conscientious about
      the sufficiency, the legality of the pleas that I've
      taken. . . . I can say in all of the pleas that I've
      taken since I've taken the bench, . . . I have never
      intend[ed] to cut corners and go quickly . . . , and I
      know . . . with every plea I've taken I've intended to
      make sure that I was technically doing everything that
      I was obligated to do to have a fair and sufficient
      plea. Not just for the record, but really in fairness
      to all the parties involved.

                                       15
                                                              No.   2011AP2733-CR.dtp


translation that you are receiving?"                  "Yes, Your Honor," the

defendant replied.

    ¶151 There were other pertinent questions:

    THE COURT: And have you                entered    your     pleas    today
    freely and voluntarily?

    THE DEFENDANT: Yes, Your Honor.

             . . . .

    THE COURT: And are you satisfied that this plea is
    being   made   voluntarily, intelligently and  with
    understanding?

    MR. MACIOLEK: I am.
    ¶152 Four       months     later,   on    March     19,    2010,    the     court

received a pro se motion from the defendant to withdraw her

pleas.       She    accused    Attorney      Maciolek    of     wantonly      taking

advantage      of     her      emotional      distress,         confusion,        and

disorientation,       and     forcing   her     to    accept        pleas     without

explanation.       She claimed that her attorney never advised her to

reject pleas if she did not fully understand the charges and

penalties.

    ¶153 On May 10, 2010, almost six months after her pleas,

the defendant's fourth attorney filed a formal motion for plea

withdrawal.    The motion claimed, in part:

         1.   That the defendant was unable to make a
    knowing plea as a result of the failure of previous
    counsel to fully explain the elements of the crime,
    maximum penalties, and likely outcome of the plea;

         2.   That during the colloquy with [the] court,
    the defendant was excessively compliant and overly
    deferential to the court to the extent that her
    answers were made out of respect and deference to the
    court rather than actual understanding of the meaning
    of the court's questions;
                              16
                                                                  No.    2011AP2733-CR.dtp

            3.   That the defendant was rushed into making a
       decision   regarding   the    plea   without   adequate
       opportunity to consult and confer with people in her
       support network who had been supporting her and
       advising her since the beginning of her incarceration;

               . . . .

            6.   As a result of one or all of the above
       assertions,    the   defendant's    pleas were not
       intelligent, knowing, or voluntary.
       ¶154 The majority opinion sums up the defendant's fair and

just reasons: "Lopez contended that her pleas were rushed, and

that   she     entered    her     pleas   unknowingly          due      to   her   limited

English."      Majority op., ¶3 n.2.

       ¶155 The defendant's contention that she did not understand

what she was doing when she entered the pleas disregards both

the length of time that passed between the initial charges and

the    plea    colloquy     and    the    extensive        efforts       throughout     to

accommodate the defendant's language deficiencies.                           If the court

interpreters,       Spanish       language       forms,     and      Spanish-speaking

attorneys were insufficient, one wonders what more could have

been done and what sort of disturbing precedent would be set by

this case.

       ¶156 The     claim   that    Lopez       was   "rushed"       into     making   her

pleas may find superficial support in Judge McNamara's comment

that "of course all the parties know that this plea hearing came

very    quickly"——namely,         the     day    after     a    status        conference.

However,      the   prosecutor,     Corey       Stephan,    commented         during   the

plea hearing that "[w]e didn't think that there was ever going

to be a plea in this case."



                                           17
                                                            No.   2011AP2733-CR.dtp


    ¶157 In explaining to the court why the plea was in the

public interest, Stephan stated:

    I don't think this is letting this defendant off easy.
    I think that this is giving her an opportunity to
    accept   responsibility   for   the  offense   and   I
    think . . . any time a defendant asks for a plea
    agreement, I think that we're to come in and make a
    good faith effort to resolve the case and I will tell
    you that this offer that we are presenting here today
    is substantially the same offer that has been
    available to her since the middle of the summer. It's
    just that she now wishes to accept it, and there were
    some minor detail changes that I don't think that we
    need to get into here, but it's substantially the same
    offer, nothing really changed, but she is now in a
    place where she wishes to accept it and I think it's
    in the best interest of the State and the child to
    step forward and accept the offer on behalf of the
    State and to re-extend our offer.

(Emphasis added.)
    ¶158 There     is   no   evidence    that   the   defendant's        attorney

pressured her into entering a plea against her will, and the

circuit court so found.        In all probability, Attorney Maciolek

counseled   the   defendant    to   reflect     on    the    strength     of   the

State's evidence and the possibility that contrition and remorse
on her part would play better than defiance, blame-shifting, and

unwarranted claims that extreme child abuse was a "family matter

not criminal in nature."        (See Defendant's Pro Se Motion filed

March 19, 2010.)




                                    18
                                                         No.   2011AP2733-CR.dtp


     ¶159 Finally, the motions to withdraw the defendant's pleas

were untimely under any reasonable standard.7

     ¶160 Judge      McNamara    determined      that   the    defendant     had

offered a fair and just reason for withdrawing her pleas,8 but he

concluded    that     plea      withdrawal      would    be      substantially

prejudicial to the State.

     ¶161 It would be hard for this court to conclude that Judge

McNamara's   first    determination       was   an   erroneous    exercise   of


     7
       Judge McNamara noted that Lopez "certainly did not
expeditiously seek to withdraw her plea.    She waited until the
trial and conviction and sentencing of her husband. She waited
until approximately ten days after the Court received the
presentence investigation report with a recommendation for a
sentence by the Department of Corrections."
     8
       Although Judge McNamara determined that Lopez established
a fair and just reason for withdrawing her pleas, he astutely
noted that a defendant's burden to establish a fair and just
reason is quite low:

          The second aspect as to whether or not Ms. Lopez
     has shown a fair or just reason to withdraw her plea
     is a little trickier.     I do believe that the law on
     that is at times conflicting.      As was noted by Mr.
     Glinberg there needs to be something more than just a
     desire to have a trial, at the same time all of the
     cases really indicate that there just needs to be a
     mere showing or adequate reason for the defendant's
     change of heart.     And it's clearly a relatively low
     burden of proof for the defendant to show that she has
     a fair and just reason to withdraw her plea.     In the
     various cases such as Shanks or Libke, the kinds of
     things that would constitute a fair and just reason
     for withdrawing the plea includes an assertion of
     innocence, a genuine misunderstanding of the pleas'
     consequences, and hasty entry of the plea, confusion
     on the defendant's part, coercion by trial counsel,
     and also whether the defendant sought to withdraw the
     plea   expeditiously   or   efficiently  or  relatively
     quickly.

                                     19
                                                    No.   2011AP2733-CR.dtp


discretion, given the current state of the law.           However, Judge

McNamara, whose performance was absolutely superior, was trying

to apply law that no longer makes any sense.

    ¶162 That is why the fair and just reason rule must be

reconsidered.

    ¶163 For the foregoing reasons, I respectfully concur.

    ¶164 I   am   authorized   to   state   that   Justice   MICHAEL    J.

GABLEMAN joins this concurrence.




                                    20
                                                                  No.    2011AP2733-CR.ssa


    ¶165 SHIRLEY S. ABRAHAMSON, C.J.                        (dissenting).         I join

Justice Bradley's dissent.

    ¶166 I     write    separately        to   put    into      perspective      Justice

Prosser's concurrence on the continued use of the "fair and just

reason"    standard     for    withdrawal       of    a     guilty      plea   prior    to

sentencing.     The concurrence asserts that it is inconsistent to

impose stringent plea colloquy requirements on circuit courts to

ensure knowing, intelligent, and voluntary guilty pleas and to

apply   simultaneously        the   "fair      and    just      reason"      standard   to

allow     withdrawal    of     a     guilty     plea        prior       to   sentencing.

Concurrence, ¶121.

    ¶167 This issue has not been addressed by the parties.

    ¶168 The     concurrence's           comments      on    the     "fair     and   just

reason" standard, in my opinion, should be read in the following

contexts:

            (A) National and state authorities proposing criminal

    procedure         rules        and    standards          have        simultaneously

    recognized refinements to guilty plea colloquy requirements
    while retaining the "fair and just reason" standard for

    withdrawal of a guilty plea prior to sentencing;

            (B) The policies favoring the "fair and just reason"

    standard for withdrawal of guilty pleas prior to sentencing

    remain salient;

            (C) Wisconsin case law on the "fair and just reason"

    standard      has     evolved        to    meet       the     changing      criminal

    procedure landscape;



                                           1
                                                               No.    2011AP2733-CR.ssa


             (D) The "fair and just reason" standard supplements

      the    defendant's       remedies       for   arguably         deficient    plea

      colloquies       under   State   v.     Bangert,   131    Wis. 2d 246,       389

      N.W.2d 12 (1986); and

             (E) The concurrence advocates the manifest injustice

      standard to replace the "fair and just reason" standard for

      guilty plea withdrawal, despite the concurring justice's

      criticism of the "manifest injustice" standard as unclear

      and difficult.1

                                          A

      ¶169 Much of the concurrence's reasoning for rejecting the

"fair and just reason" standard rests upon the notion that there

has   been   a   sea    change   in    the    requirements      for    the   colloquy

before a circuit court accepts a plea of guilty since Wisconsin

adopted the "fair and just reason" standard based on the ABA's

1967 standards.2       Concurrence, ¶123.

      ¶170 I agree that this court should be open to reexamining

case law to conform to changes in the law.
      ¶171 Yet entities that propose and codify rules of criminal

procedure continue to urge use of the "fair and just reason"

standard.     See, for example, the American Bar Association's 1999


      1
       State v. Taylor, 2013 WI 34, ¶71, 347 Wis. 2d 30, 829
N.W.2d 482 (Prosser, J., concurring).
      2
       American Bar Association Project on Standards for Criminal
Justice, Standards Relating to Pleas of Guilty § 2.1(b)
(Approved Draft 1968); Libke v. State, 60 Wis. 2d 121, 128-29,
208 N.W.2d 331 (1973) (rejecting the manifest injustice standard
in favor of the "fair and just reason" standard based on the
1967 ABA standards).

                                          2
                                                               No.   2011AP2733-CR.ssa


revised       criminal     justice   standards,3        the    Federal      Rules   of

Criminal Procedure,4 the Uniform Rules of Criminal Procedure,5

and    the     Wisconsin     Judicial    Council's       most    recent      proposed

revisions to criminal procedure.

       ¶172 The ABA reaffirmed its commitment to the "fair and

just       reason"   standard    when   it    revised    its    criminal      justice

standards in 1999.6          This comprehensive reworking of the ABA's

criminal       justice   standards      incorporated      changes      in    criminal

procedure       since    1967,    including     increased        protections        for

defendants at guilty plea colloquies.7                    Nonetheless, the ABA

continues to use the "fair and just reason" standard, noting

that "[t]his test frequently has been applied to presentence

plea withdrawal motions in the federal courts and in many state

courts."8



       3
       ABA Standards for Criminal Justice:                    Pleas of Guilty (3d
ed. 1999).
       4
           Fed. R. Crim. P. 11(d)(2).
       5
           Unif. R. Crim. P. 444(g), 10 U.L.A. 123 (1987).
       6
       ABA Standards for Criminal Justice: Pleas of Guilty Std.
14-2.1 (3d ed. 1999) ("After entry of a plea of guilty or nolo
contendere and before sentence, the court should allow the
defendant to withdraw the plea for any fair and just reason.").
       7
       See, e.g., ABA Standards for Criminal Justice: Pleas of
Guilty Std. 14-1.4 at 35-39 (3d ed. 1999) (historical note and
commentary) (requiring that defendants understand not only the
nature and elements of the offense, but also the "terms and
conditions of any plea agreement").
       8
       See, e.g., ABA Standards for Criminal Justice: Pleas of
Guilty Std. 14-2.1 at 85-86 (3d ed. 1999) (historical note and
commentary).

                                          3
                                                                 No.   2011AP2733-CR.ssa


    ¶173 The       most   recent     version     of       the    Federal       Rules    of

Criminal Procedure sets forth numerous requirements for a plea

colloquy   prior    to    court    acceptance    of       a    guilty    plea,9       while




    9
        Federal Rule of Criminal Procedure 11(b) states:

    (b) Considering          and     Accepting        a       Guilty    or     Nolo
    Contendere Plea.

           (1) Advising and Questioning the Defendant.
           Before the court accepts a plea of guilty or nolo
           contendere, the defendant may be placed under
           oath, and the court must address the defendant
           personally in open court.    During this address,
           the court must inform the defendant of, and
           determine that the defendant understands, the
           following:

           (A) the government's right, in a prosecution for
           perjury or false statement, to use against the
           defendant any statement that the defendant gives
           under oath;

           (B) the right to plead not guilty, or having
           already so pleaded, to persist in that plea;

           (C) the right to a jury trial;

           (D) the right to be represented by counsel——and
           if necessary have the court appoint counsel——at
           trial and at every other stage of the proceeding;

           (E) the right at trial to confront and cross-
           examine adverse witnesses, to be protected from
           compelled self-incrimination, to testify and
           present evidence, and to compel the attendance of
           witnesses;

           (F) the defendant's waiver of these trial rights
           if the court accepts a plea of guilty or nolo
           contendere;

           (G) the nature of each                charge         to     which    the
           defendant is pleading;

                                        4
                                                    No.   2011AP2733-CR.ssa


continuing to affirm a commitment to the "fair and just reason"

standard.    Federal Rule 11(d)(2)(B) states:        "A defendant may

withdraw a plea of guilty or nolo contendere . . . after the

court   accepts   the   plea,   but   before   it    imposes     sentence



            (H) any maximum possible penalty, including
            imprisonment, fine, and term  of  supervised
            release;

            (I) any mandatory minimum penalty;

            (J) any applicable forfeiture;

            (K) the court's authority to order restitution;

            (L) the court's obligation to impose a special
            assessment;

            (M) in determining a sentence, the court's
            obligation    to    calculate   the    applicable
            sentencing-guideline range and to consider that
            range, possible departures under the Sentencing
            Guidelines, and other sentencing factors under 18
            U.S.C. § 3553(a);

            (N) the terms of any plea-agreement provision
            waiving the right to appeal or to collaterally
            attack the sentence; and

            (O) that, if convicted, a defendant who is not a
            United States citizen may be removed from the
            United States, denied citizenship, and denied
            admission to the United States in the future.

    (2) Ensuring That a Plea Is Voluntary.          Before
    accepting a plea of guilty or nolo contendere, the
    court must address the defendant personally in open
    court and determine that the plea is voluntary and did
    not result from force, threats, or promises (other
    than promises in a plea agreement).

    (3) Determining the Factual Basis for a Plea. Before
    entering judgment on a guilty plea, the court must
    determine that there is a factual basis for the plea.

                                  5
                                                             No.    2011AP2733-CR.ssa


if . . . the     defendant    can    show   a   fair   and     just     reason   for

requesting the withdrawal."

     ¶174 The Uniform Rules of Criminal Procedure also use the

"fair     and   just   reason"      standard,10   despite          extensive     plea

colloquy requirements similar to those in the ABA standards and

the federal rules.11

     ¶175 The     Wisconsin   Judicial      Council,    which       for   over   ten

years has considered changes to criminal procedure, has recently

proposed a bill that imposes the "fair and just reason" standard

for plea withdrawal prior to sentencing, with a remedy that

restores both the State and the defendant to the positions they

were in prior to the plea.12



     10
          Unif. R. Crim. P. 444 (g), 10 U.L.A. 123 (1987).
     11
          Unif. R. Crim. P. 444(c), 10 U.L.A. 120-21 (1987).
     12
          2013 Wis. Assembly Bill 383, § 732, reads in relevant
part:

     SECTION 732.       971.093 of the statutes is created to
     read:

     971.093     Withdrawal of a plea of guilty or no contest.

     (1)    BEFORE SENTENCING.    The court shall grant a
     motion that is made before sentencing to withdraw a
     plea of guilty or no contest if a fair and just reason
     for doing so is established.

            . . . .

     (3)    REMEDY.   When the court grants a motion to
     withdraw a plea of guilty or no contest under this
     section, the judgment of conviction is vacated, the
     original charge or charges reinstated, and the parties
     are restored to the position they were in before the
     plea and any related plea agreement was accepted.

                                        6
                                                                 No.       2011AP2733-CR.ssa


       ¶176 Thus, it appears that the entities and organizations

that propose and codify new criminal procedure standards have

not taken the concurrence's suggestion to reject the "fair and

just reason" standard.              On the contrary, they have repeatedly

affirmed the "fair and just reason" standard for withdrawal of

guilty pleas prior to sentencing.

                                            B

       ¶177 Important         policy     rationales      underlie          the   continued

application of the "fair and just reason" standard for guilty

plea withdrawal prior to sentencing: (1) judicial efficiency in

reducing appeals; and (2) fairness to the defendant.                                   These

rationales       have   not    been      undermined      by    more        rigorous     plea

colloquy requirements.

       ¶178 As the concurrence rightly notes, any standard must

"formulate       procedures      which     will       maximize       the     benefits     of

conviction without trial and minimize the risks of unfair or

inaccurate results."            Concurrence, ¶122 (quoting American Bar

Association Project on Minimum Standards for Criminal Justice——
Pleas of Guilty 5 (Tentative Draft, Feb. 1967)).

       ¶179 Regarding the rationale of judicial efficiency, courts

have noted that "[t]he liberal rule for withdrawal of a guilty

plea        before   sentence       is    consistent          with     the       efficient

administration of criminal justice":13

            • It reduces the number of appeals contesting the
              'knowing and voluntariness' of a guilty plea.


       13
            United   States    v.   Young,      424    F.2d 1276,      1279      (3d    Cir.
1970).

                                            7
                                                  No.   2011AP2733-CR.ssa

          • It avoids the difficulties of disentangling such
            claims.14
     ¶180 Regarding the rationale of fairness to the defendant,

the 1999 ABA commentary to its use of the "fair and just reason"

standard for withdrawal of a guilty plea prior to sentencing

explains that the standard balances the goals of maximizing the

benefits of conviction without trial while minimizing the risks

of unfairness as follows:

          • The conviction is not yet final.

          • The court has not taken the time to weigh an
            appropriate sentence.

          • No appeal from the judgment is possible.

          • If the defendant has second thoughts before
            sentencing about having pleaded guilty, this fact
            may suggest that the plea was entered without
            sufficient understanding and contemplation.

          • Given the considerable care pursuant to which
            pleas are required to be taken, it is difficult
            to justify allowing a defendant to withdraw a
            plea without any reason at all.15
     ¶181 The ABA's reasoning for using a "fair and just reason"

standard is spot-on, even if plea colloquies now better ensure

knowing, intelligent, and voluntary guilty pleas.
     ¶182 Additionally,    courts   have   persuasively   explained    a

distinction between the policy for a "fair and just reason"

standard for guilty plea withdrawal prior to sentencing and the


     14
          These bullet points are stylized from Young, 424 F.2d at
1279.
     15
       These bullet points are stylized from ABA Standards for
Criminal Justice:      Pleas of Guilty Std. 14-2.1 at 85
(commentary) (3d ed. 1999).

                                    8
                                                           No.   2011AP2733-CR.ssa


policy for a more stringent standard after sentencing.                  State v.

Olish, 266 S.E.2d 134 (W. Va. 1980), summarizes three reasons

for applying a more stringent standard for post-sentencing plea

withdrawal:

            • First, once sentence is imposed, the defendant is
              more likely to view the plea bargain as a
              tactical mistake and therefore wish to have it
              set aside.

            • Second, at the time the sentence is imposed,
              other portions of the plea bargain agreement will
              often be performed by the prosecutor, such as the
              dismissal of additional charges or the return or
              destruction of physical evidence, all of which
              may be difficult to undo if the defendant later
              attacks his guilty plea.

            • Finally, a higher post-sentence standard for
              withdrawal is required by the settled policy of
              giving finality to criminal sentences which
              result from a voluntary and properly counseled
              guilty plea.16
       ¶183 The    Olish   court's    reasoning      matches      up   with     the

reasoning in our case law justifying the "fair and just reason"

standard for guilty plea withdrawal prior to sentencing and the

more    stringent    standard   for        guilty   plea    withdrawal        after

sentencing.       Our court has stated that a more stringent post-
sentence standard "reflects the State's interest in the finality

of convictions, and reflects the fact that the presumption of

innocence no longer exists."          State v. Taylor, 2013 WI 34, ¶48,




       16
       These bullet points are stylized from the Olish case.
State v. Olish, 266 S.E.2d 134, 136 (W. Va. 1980).

                                       9
                                                              No.     2011AP2733-CR.ssa


347 Wis. 2d 30, 62, 829 N.W.2d 482 (internal quotation marks and

quoted source omitted).17

      ¶184 In    trying   to     support     its    position        that    increased

protection      for    defendants     during       plea      colloquies       renders

unnecessary      the   "fair    and   just     reason"       standard       for     plea

withdrawal prior to sentencing, the concurrence quotes 5 Wayne

R. LaFave et al., Criminal Procedure § 21.5(a), at 868 (3d ed.

2007).     Concurrence,        ¶123   n.3.     It     is   not      clear     why    the

concurrence refers to Professor LaFave.               LaFave does not support

the   concurrence's     position      that   the     "fair      and    just   reason"

standard should now be discarded.

      ¶185 The    concurrence     correctly        notes   in    its    footnote      3,

however, that LaFave explains that the shift in federal cases is

towards a "fair and just reason" for plea withdrawal and away

from an earlier view that only prejudice was at issue.

      ¶186 LaFave documents the gradual transition from the view

espoused in United States v. Savage, 561 F.2d 554, 557 (4th Cir.

1977), that no "fair and just reason" is needed and a defendant
should be allowed to withdraw a guilty plea absent prejudice,

towards a more restrictive view that there is "no occasion to




      17
       See also State v. Nawrocke, 193 Wis. 2d 373, 379-80, 534
N.W.2d 624 (Wis. App. 1995) (citing Olish, 266 S.E.2d at 136,
for the policy reasons distinguishing the "fair and just reason"
standard for guilty plea withdrawal prior to sentencing and the
"manifest injustice" standard for guilty plea withdrawal after
sentencing); 5 Wayne R. LaFave et al., Criminal Procedure
§ 21.5(a) (3d ed. 2007) (same).       Cf. State v. Handy, 391
S.E.2d 159, 161 (N.C. 1990) (same).

                                       10
                                                                No.    2011AP2733-CR.ssa


inquire into the matter of prejudice unless the defendant first

shows a good reason for being allowed to withdraw his plea."18

      ¶187 There is no shift by LaFave or in federal and state

law away from the "fair and just reason" standard.

      ¶188 In fact, LaFave explicitly supports the "fair and just

reason" standard for presentencing guilty plea withdrawal even

in   the    face    of     plea    colloquy     requirements.           Adopting        the

reasoning     of    the    Olish    case   discussed        above,     LaFave       writes:

"The prevailing approach of utilizing a more demanding standard

after imposition of sentence than when the motion comes before

sentencing is sound."19

      ¶189 LaFave concludes that the rules governing withdrawal

of a guilty plea prior to sentencing on the ground that the plea

colloquy     was    defective      do    not    supplant     the      "fair    and     just

reason" standard.           LaFave states:            "[I]t is erroneous for a

court to conclude 'that a defendant's reason for seeking to

withdraw     his    plea    is    not   "fair   and    just"    unless        the   reason

renders the plea invalid.'"20
      ¶190 The concurrence is not persuasive in abandoning the

well-reasoned rationales (in Olish and LaFave, for example) for

using a "fair and just reason" standard for withdrawal of a

guilty     plea    prior    to    sentencing     in   the    present     era     of    more

rigorous plea colloquies.

      18
           5 LaFave et al., supra note 17, § 21.5(a) at 868.
      19
           Id. § 21.5(a), at 867.
      20
       Id. § 21.5(a), at 871-72 (quoting United                               States     v.
Ortega-Ascanio, 376 F.3d 879 (9th Cir. 2004)).

                                           11
                                                                      No.    2011AP2733-CR.ssa


                                                C

       ¶191 Adherence to the "fair and just reason" standard is of

long    standing       in       Wisconsin      law,        see     Libke     v.   State,    60

Wis. 2d 121, 128, 208 N.W.2d 331 (1973).                           Instead of rejecting

the standard, the court has continuously applied it.                              Indeed, as

recently as last year, Justice Prosser wrote that "[w]hen a

defendant      moves       to    withdraw      his    plea       before     sentencing,    the

circuit       court    should         freely     allow       the     withdrawal      if    the

defendant supplies any 'fair and just reason' unless withdrawal

would       substantially         prejudice         the     prosecution."          State    v.

Taylor,       2013    WI        34,   ¶62,     347        Wis. 2d 30,       829   N.W.2d 482

(Prosser, J., concurring) (citing State v. Cain, 2012 WI 68,

¶24, 342 Wis. 2d 1, 816 N.W.2d 177).

       ¶192 Our case law over the years has developed the contours

of the "fair and just reason" standard.

       ¶193 The concurrence erroneously treats the "fair and just

reason" standard as so low a bar that the circuit courts become

"captive to manipulation by defendants."                          Concurrence, ¶31.        Yet
in practice, the "fair and just reason" standard is far from an

automatic pass for defendants.                       "Despite the language of this

standard that suggests a low burden for plea withdrawal before

sentencing, the Wisconsin Supreme Court has noted the difficulty

that defendants encounter in practice."21



       21
       9 Christine M. Wiseman & Michael Tobin, Wisconsin
Practice Series: Criminal Practice & Procedure § 23:31, at 941-
42 (2d ed. 2008) (footnotes omitted) (citing State v. Jenkins,
2007 WI 96, ¶43, 303 Wis. 2d 157, 736 N.W.2d 24).

                                               12
                                                                No.   2011AP2733-CR.ssa


       ¶194 For example, in State v. Canedy, 161 Wis. 2d 565, 469

N.W.2d 163 (1991), this court explicitly rejected the approach

of some courts that "determined that any desire to withdraw the

plea    before    sentence      is     'fair     and    just'    as    long   as   the

prosecution would not be prejudiced."                     Canedy, 161 Wis. 2d at

583.     Canedy noted that Wisconsin law requires "something other

than the desire to have a trial"; the defendant has the burden

to prove a fair and just reason for withdrawal of a guilty plea

by a preponderance of the evidence.                Canedy, 161 Wis. 2d at 583-

84.

       ¶195 In Canedy, the defendant alleged that he misunderstood

the    meaning    of   "depraved      mind"      and    the   consequences    of   his

guilty plea, even though he entered the guilty plea after a

colloquy explaining the "depraved mind" element of the crime.

An appellate court uses the "erroneous exercise of discretion"

standard for reviewing a circuit court's grant or denial of a

defendant's motion to withdraw a guilty plea under the "fair and

just reason" standard.               Because the circuit court found the
defendant's allegations not credible by a preponderance of the

evidence, this court held that denial of the defendant's motion

to     withdraw    his   plea        was   not     an    erroneous      exercise    of

discretion.       See also State v. Kivioja, 225 Wis. 2d 271, 288-89,

592 N.W.2d 220 (1999) (holding that a "fair and just reason"

must be "credible" and "plausible" and deferring to the circuit

court's finding of credibility).

       ¶196 The court also recognized the "fair and just reason"
standard as a bar to withdrawal of a guilty plea in State v.

                                           13
                                                           No.   2011AP2733-CR.ssa


Jenkins, 2007 WI 96, 303 Wis. 2d 157, 736 N.W.2d 24, noting that

a defendant must meet two standards prior to demonstrating a

"fair and just reason":

    First, the defendant must proffer a fair and just
    reason for withdrawing his plea.     Not every reason
    will qualify as a fair and just reason.    Second, the
    defendant must proffer a fair and just reason that the
    circuit court finds credible.     In other words, the
    circuit court must believe that the defendant's
    proffered reason actually exists.
State    v.   Jenkins,   303    Wis. 2d 157,      ¶43     (citations    omitted)

(citing Canedy).

    ¶197 In       Jenkins,       the        defendant's      allegations       of

misunderstanding were rejected as failing these requirements.22

The Jenkins court stated:        "As long as circuit courts follow the

court     mandated   and       statutory       requirements       during     plea

colloquies, defendants will ordinarily have difficulty showing a

fair and just reason for plea withdrawal if the reason is based

on grounds that were adequately addressed in the plea colloquy."

Jenkins, 303 Wis. 2d 157, ¶60.

    ¶198 Although the concurrence implies that the "fair and
just reason" standard is no meaningful bar to plea withdrawal, I

can find no Wisconsin Supreme Court case reversing a circuit




    22
       State v. Jenkins, 2007 WI 96, ¶88, 303 Wis. 2d 157, 736
N.W.2d 24.

                                       14
                                                         No.   2011AP2733-CR.ssa


court's denial of a defendant's motion to withdraw a guilty plea

prior to sentencing since Libke.23

     ¶199 Contrary to the concurrence's concerns, our case law

has conformed the "fair and just reason" to our contemporary

criminal procedure requirements for guilty plea colloquies.

                                    D

     ¶200 The     concurrence   implies     that   defendants     wishing    to

withdraw their guilty pleas prior to sentencing can use State v.

Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), which enumerates

guilty    plea   colloquy   requirements,    as    a   replacement    for   the

"fair and just reason" standard.         Concurrence, ¶136.

     ¶201 Yet the concurrence fails to note that the court has

made it increasingly difficult to get a                Bangert   hearing, at


     23
       See, e.g., State v. Bollig, 2000 WI 6, 232 Wis. 2d 561,
605 N.W.2d 199 (upholding the circuit court where it denied the
defendant's motion for a new trial because of substantial
prejudice to the State, even though the circuit court initially
denied the motion on grounds that the defendant did not allege a
"fair and just reason"); State v. Kivioja, 225 Wis. 2d 271, 592
N.W.2d 220 (1999) (holding that even though the circuit court
applied the incorrect "manifest injustice" standard for guilty
plea withdrawal prior to sentencing, the circuit court's denial
of the defendant's motion to withdraw his guilty plea should not
be reversed as an erroneous exercise of discretion when the new
evidence admitted was deemed unreliable and therefore was not a
"fair and just reason" for guilty plea withdrawal); State v.
Garcia, 192 Wis. 2d 845, 863, 532 N.W.2d 111 (1995) (holding
that the circuit court did not erroneously exercise its
discretion in denying the defendant's motion to withdraw the
guilty plea, deeming the defendant's reason to be incredible);
Dudrey v. State, 74 Wis. 2d 480, 485, 247 N.W.2d 105 (1976)
(requiring   evidence   "that   the  misunderstanding   actually
existed"); State v. McKnight, 65 Wis. 2d 582, 223 N.W.2d 550
(1974) (holding that the defendant's allegations were incredible
because the defendant acknowledged how much time he had spent
deliberating over his plea change).

                                    15
                                                       No.   2011AP2733-CR.ssa


which the defendant can show that he or she did not knowingly,

intelligently,   and   voluntarily      enter   a   guilty   plea.     Thus,

Bangert cannot function as a replacement for the "fair and just

reason" standard.

     ¶202 Bangert   sets   out   two    requirements    that   a   defendant

must fulfill to get an evidentiary hearing to demonstrate that

the plea was not knowingly, intelligently, or voluntarily made:

     A Bangert motion warrants an evidentiary hearing if
     (1) the motion makes "a prima facie showing that [the]
     plea   was   accepted  without   the   trial   court's
     conformance with [Wis. Stat.] § 971.08 or other
     mandatory procedures," and if (2) the motion alleges
     that in fact the defendant did not know or understand
     the information that should have been provided at the
     plea colloquy.
State v. Howell, 2007 WI 75, ¶26, 301 Wis. 2d 350, 734 N.W.2d 48

(quoting Bangert, 131 Wis. 2d at 274) (footnotes omitted).

     ¶203 In recent years, however, this court has made this

hearing increasingly difficult to get, even though a prima facie

showing of a     Bangert   violation should be relatively easy to

allege.24

     ¶204 In State v. Taylor, 2013 WI 34, 347 Wis. 2d 30, 829

N.W.2d 482, the defendant was denied a Bangert hearing, despite

meeting all the requirements set forth in Bangert and subsequent




     24
       "The requirements for a Bangert motion are relatively
relaxed because the source of the defendant's misunderstanding,
the plea colloquy defect, should be clear from the transcript of
the hearing at which the plea was taken.    We require less from
the allegations in a Bangert motion because the circuit court
bears the responsibility of preventing failures in the plea
colloquy." State v. Howell, 301 Wis. 2d 350, ¶28.

                                   16
                                                                    No.    2011AP2733-CR.ssa


cases.25        Taylor     states       that    when         a    defendant          shows    an

"insubstantial          defect"   in      the       plea         colloquy,       a     Bangert

evidentiary      hearing    is    unnecessary.               Taylor,      347    Wis. 2d 30,

¶39.

       ¶205 The increased barriers to defendants to get a Bangert

hearing make the value of a "fair and just reason" standard for

presentencing guilty plea withdrawal more important, contrary to

the concurrence's assertions.              A defect that might not meet the

current standard for getting a Bangert hearing might still be a

"fair and just reason" justifying a guilty plea withdrawal prior

to sentencing.           Put differently,           Bangert        does not provide a

sufficient safety net.

       ¶206 Similarly,       in   State        v.   Negrete,           2012     WI    92,    343

Wis. 2d 1, 819 N.W.2d 749, the court simply opted not to apply

Bangert at all.          Negrete, 343 Wis. 2d 1, ¶3.                   Negrete held that

when the defendant failed to make "'a pointed showing' of an

error in the plea colloquy by reference to the plea colloquy

transcript,"       Negrete,       343     Wis. 2d 1,             ¶20      (quoted       source
omitted), the Bangert test did not apply.                           Negrete, like many

cases       involving    Bangert,       involved         a    defendant's        motion       to

withdraw a guilty plea after sentencing.

       ¶207 Although the defendant in Negrete asserted that the

circuit court failed to inform him of collateral consequences of

his     plea    during     the    colloquy,         the       court       held       that    the

defendant's      "equivocal"      affidavit         in       support      of    his    Bangert

       25
       State v. Brown, 2006 WI 100, 293 Wis. 2d 594, 716
N.W.2d 906; State v. Cross, 2010 WI 70, 326 Wis. 2d 492, 786
N.W.2d 64.

                                           17
                                                               No.    2011AP2733-CR.ssa


motion did not demonstrate a "pointed showing of an error."

Negrete, 343 Wis. 2d 1, ¶¶6, 20.               The bar to get a hearing was

set high; indeed the defendant in Negrete did not get a Bangert

hearing.       But the defendant might have made a sufficient showing

of a "fair and just reason" to withdraw the guilty plea, had the

defendant made his plea withdrawal motion prior to sentencing.

       ¶208 Thus,        although         Bangert       provides           substantial

protections for defendants at plea colloquies, such protections,

as LaFave explains, do not usurp all potential fair and just

reasons for withdrawing a guilty plea prior to sentencing.                           The

court's recently imposed limitations on Bangert illustrate the

necessity of retaining the "fair and just reason" standard for

withdrawal of guilty pleas prior to sentencing.

                                           E

       ¶209 The    concurrence      asserts     that    "the    court      should    not

permit a defendant to withdraw a plea before sentencing unless

the defendant is able to prove a manifest injustice, provided

that the defendant has been accorded the rights and procedural
protections in relation to pleas that have been enshrined in our

law."       Concurrence, ¶138 (emphasis added).

       ¶210 In     Taylor,      Justice    Prosser      urged        the   court     "to

carefully       update    the     'manifest      injustice'          test,    with     a

comprehensive catalog of fact situations requiring withdrawal,

when    a    defendant   satisfies    his      burden   of     proof,      along    with

citations supporting these situations."                 Taylor, 347 Wis. 2d 30,

¶71 (Prosser, J., concurring).



                                          18
                                                    No.   2011AP2733-CR.ssa


    ¶211 Justice   Prosser's     concurrence   in   the    instant    case

seeks to replace the "fair and just reason" standard, which it

perceives   as   unclear   and    difficult,   with       the   "manifest

injustice" standard, which Justice Prosser has already noted is

unclear and difficult.

    ¶212 In sum, I join Justice Bradley's dissent and write

separately to put Justice Prosser's concurrence in perspective.




                                  19
                                                                     No.   2011AP2733.awb


    ¶213 ANN WALSH          BRADLEY, J.            (dissenting).           The majority

opinion ultimately concludes that because the videotapes would

no longer be admissible under Wis. Stat. § 908.08, the State

would   be    substantially       prejudiced        if   Lopez   were       allowed   to

withdraw her pleas.            It maintains that without the videotapes

the State would be left with a less compelling presentation of

evidence due to A.O.'s loss of memory.

    ¶214 Its analysis, however, fails to address the argument

that there was no evidence in the record supporting the circuit

court's speculation or belief that A.O. suffered from memory

loss.      It further ignores the strong evidence against Lopez,

which may still include the recordings or substantial portions

of them admitted under other evidentiary rules.                      In essence, the

majority fails to give any meaning to the word "substantial."

    ¶215 I am mindful of the appalling facts of this case.

Nevertheless, I determine, as did the court of appeals, that

neither      the   record   nor    the       law    supports     a       conclusion    of

substantial        prejudice     here.         Accordingly,          I     respectfully
dissent.

                                         I

    ¶216 At        the   outset    the       majority     correctly         states    the

standard for plea withdrawal:                "a circuit court should 'freely

allow a defendant to withdraw his plea prior to sentencing for

any fair and just reasons, unless the prosecution [would] be

substantially        prejudiced.'"        Majority        op.,       ¶2      (citations

omitted).



                                          1
                                                               No.   2011AP2733.awb


     ¶217 It acknowledges that the State has conceded that Lopez

presented a fair and just reason for withdrawing her pleas.

Majority     op.,     ¶3.     Accordingly,      it   announces      what   is   the

essential issue in this case: "our analysis in this case focuses

on   whether    the         circuit     court   erroneously      exercised      its

discretion in concluding that the State would be substantially

prejudiced if Lopez were allowed to withdraw her pleas." Id. It

follows the announcement by listing the defendant's arguments.

Majority op., ¶4.            Among them is Lopez's argument that "the

State failed to demonstrate that the case against Lopez would be

more difficult to prove."             Id.

     ¶218 The       majority     later      characterizes    this    argument    as

"whether the State might still be able to prove guilt beyond a

reasonable doubt."          Majority op., ¶86.        It determines that this

is not the test for substantial prejudice and proceeds to set

forth   its     own     somewhat        circuitous    test    for     substantial

prejudice.     It explains that the test for substantial prejudice

is "whether the State would be substantially prejudiced if Lopez
were allowed to withdraw her pleas." Id.

     ¶219 In reaching its conclusion that there was substantial

prejudice in this case, the majority quotes the circuit court's

findings that the tapes were "compelling" and "credible," its

belief that due to the passage of time there would be a                     "risk"

that A.O. would not be able to reproduce the testimony she gave

on the tapes, and its "hope" that with therapy some of the




                                            2
                                                                   No.    2011AP2733.awb


things A.O. has forgotten.             Majority op., ¶¶91-95.1            Ultimately,

the majority determines that the State would be substantially

prejudiced here because "[w]ithout admitting the recordings as

envisioned under § 908.08, the State was left with a completely

different      and    less    compelling     presentation     of    its     evidence."

Id., ¶98.

                                            II

      ¶220 I begin by considering the purported evidence and case

law   that     forms    the    basis   of       the   majority's    conclusion      and

examine them in light of Lopez's arguments.                  First, Lopez argues

that the State has failed to show substantial prejudice because

it offered no evidence that the victim is unable to testify or

that the victim's memory has faded.                   Second, she contends that

there     is   no    showing    of   substantial        prejudice    because     there

remains significant evidence against her, including alternative

grounds for the admission of significant portions of the video

recordings.         I address each in turn.

                                            A.
      ¶221 Absent from the majority's analysis is any evidence of

record that would support its speculative conclusion that the

State would be substantially prejudiced due to A.O.'s memory

loss.     It asserts that she would be unable to convey the same


      1
       The majority also suggests that Lopez intentionally waited
until after receiving the presentence investigation ("PSI")
report to withdraw her plea and included such "dilatory" conduct
in its discussion of prejudice. Majority op., ¶¶81-82.       This
suggestion is not supported by the record as the record
indicates that Lopez had not received a copy of the PSI report
prior to submitting her motion to withdraw her pleas.

                                            3
                                                                      No.   2011AP2733.awb


message as the video recordings due to the passage of time and

her therapy.

       ¶222 I   agree    with    the   majority         that    a     circuit    court's

decision   to   grant    or     deny   a    plea    withdrawal        is    entitled   to

deference.      However, that does not mean that we simply accept

the circuit court's determination.                 This court conducts a review

which looks at whether the determination was "made and based

upon the facts appearing in the record and in reliance on the

appropriate or applicable law."                 State v. Jenkins, 2007 WI 96,

¶30, 303 Wis. 2d 157, 736 N.W.2d 24 (quoting State v. Canedy,

161 Wis. 2d 565, 579, 469 N.W.2d 163 (1991)); see also State v.

Bollig, 2000 WI 6, ¶41, 232 Wis. 2d 561, 605 N.W.2d 199.

       ¶223 Here, there are no facts in the record indicating that

A.O.'s memory has faded.           The circuit court's belief or "hope"

that A.O. has forgotten is not the same thing as a finding based

on evidence that she has forgotten or her memory has faded.

Rather than relying on evidence, both the circuit court and the

majority rest on the circuit court's speculation, belief, and
hope    about   A.O.'s    therapy      to       conclude       that    she     may   have

difficulty recalling details of what happened.

       ¶224 In the absence of any evidence of record, the majority

relies instead on two plea withdrawal cases, Bollig and State v.

Rushing, 2007 WI App 227, 305 Wis. 2d 739, 740 N.W.2d 894.                              I

find its reliance misplaced.               The majority fails to acknowledge

the    significant   distinguishing            factor   in     those    cases.       Both

cases involved significantly younger victims.                       Bollig, 232 Wis.
2d 561, ¶¶43-46 (victim was four-and-a-half years old at the

                                           4
                                                                             No.    2011AP2733.awb


time of the assault, and a motion for plea withdrawal occurred

two years later); Rushing, 305 Wis. 2d 739, ¶¶2, 7 (victim was

five years old at the time of the assault and defendant moved to

withdraw     his    plea    two     years       later).        Although            it    may    be    a

reasonable     inference          that    a     four-    or    five-year-old               victim's

memory     would    be    affected       by     the    passage      of       two    years,      that

inference is much more tenuous when applied to the victim here,

who was 14 years old at the time of the incidents.

      ¶225 In both cases there were facts of record in addition

to   the    passage        of     time        that     supported         a     conclusion            of

substantial        prejudice.            In     Rushing,      the    assistant             district

attorney     entered       an     affidavit          indicating      that          the     victim's

memory of the event had changed.                         305 Wis. 2d 739, ¶8.                        In

addition,     the       child's    videotaped          statement     indicated             that      he

"appeared to be very reluctant, very hard to interview, very

hyperactive,        very       unwilling         to     engage      in       the        facts     and

circumstances in an -- any substantial way."                         Id., ¶9.

      ¶226 In       Bollig,       this        court    likewise      stressed             facts      of
record, noting that it would be improper for the circuit court

to   rely    on     "personal       assumptions."          232      Wis.       2d        561,   ¶46.

Relying on "the facts of the record, as well as the recognition

of   the    effects       of      protracted          criminal      proceedings            on     the

victim's memory" this court agreed that there was substantial

prejudice.        Id.

      ¶227 Here, the majority does not point to facts of record

to   support       the     circuit        court's       conclusion            of        substantial



                                                 5
                                                                     No.   2011AP2733.awb


prejudice.       The absence of such evidence from the majority's

discussion undermines its analysis.

      ¶228 Mere passage of time does not support the conclusion

of substantial prejudice due to loss of memory.                             Neither do

speculation,       belief,     and     hope     support       such    a     conclusion.

Rather, it must be based on evidence of record.                      Contrary to the

majority, I would conclude that the circuit court erroneously

exercised its discretion when it determined, without evidence of

record, that A.O. suffered from memory loss and would be unable

to present substantially the same information as provided in the

video recordings.

                                         B.

      ¶229 I turn next to Lopez's second argument, that the State

failed to prove that it was substantially prejudiced because

there was still significant evidence against her.

      ¶230 Missing from the majority's analysis is a meaningful

discussion    of    what   constitutes         substantial       prejudice     and      our

relevant precedent that would inform such a discussion.
      ¶231 The      majority's        analysis        of     this    issue     consists

primarily of its determination that the test for substantial

prejudice is not "whether the State might still be able to prove

guilt   beyond       a     reasonable         doubt        without    admitting         the

audiovisual    recordings,"          rather,    "[t]he       test    is    whether      the

State would be substantially prejudiced if Lopez were allowed to

withdraw her pleas."           Majority op., ¶86.            However, if the State

can   still   prove      its   case    beyond    a     reasonable         doubt,   it   is
unclear how the State would be substantially prejudiced.                                The

                                          6
                                                                        No.    2011AP2733.awb


majority's    discussion    does      not     indicate          what     State     interest

would   be   prejudiced    and    fails       to    clearly       define        substantial

prejudice.       Fashioning       a     circuitous          test        (the     test     for

substantial    prejudice    is    whether          the    State    was        substantially

prejudiced) provides little illumination on the subject.

    ¶232 An examination of State v. Nelson, 2005 WI App 113,

282 Wis. 2d 502, 701 N.W.2d 32, would assist the majority in

shedding light on what constitutes substantial prejudice.                                  In

that case, the circuit court had denied the defendant's motion

to withdraw his plea because it determined that the State would

be prejudiced as it had lost track of the victim.                             Id., ¶6.    The

court   of   appeals,     however,      determined          that        this     was     error

because "the trial court failed to consider the strength of the

State's case against Nelson."           Id., ¶20.

    ¶233 After noting that little case law touches upon the

issue of substantial prejudice, the Nelson court relied upon a

dictionary    definition     of       "substantial."               Id.,        ¶17.      ("The

dictionary    definition     of       'substantial'             includes        the      words
'important'     and     'essential.'           See         Webster's            Third      New

International Dictionary 2280 (1993)").                         Noting that there was

DNA evidence and that the defendant had confessed to the crimes,

the court determined that even without the victim's testimony

the evidence would be sufficient to find the defendant guilty

beyond a reasonable doubt.              Id., ¶21.           Accordingly, the court

concluded    that   although      the     State          "may    have     been     somewhat

inconvenienced by the withdrawal," it had failed to establish
substantial prejudice.       Id., ¶22.

                                          7
                                                                    No.    2011AP2733.awb


       ¶234 It is difficult to reconcile the majority's decision

today with Nelson.        Here, Lopez admitted much of the abuse in an

interview with a detective the day after A.O. was rescued from

her home.       Lopez also admitted the abuse in another interview

shortly after entering her plea.                   She admitted the abuse again

when    she   testified       at   Olivas'       trial.     In    addition     to    these

statements,      there    are       photographs       of     A.O.'s       injuries     and

detailed      medical     reports.               Indeed,     the        circuit      court

acknowledged that "the wounds on [A.O.]'s body alone speak to

the reality of what she went through.                       Even if she had been

killed and she had no voice left to explain what harm [Lopez]

had done to her, the wounds on her body would still tell us."

Further, there is no indication in the record that A.O. would be

unable to reproduce her statements about the abuse.

       ¶235 As in Nelson, even absent the audiovisual recordings

of   A.O.'s     statements,        there   is     significant      evidence       against

Lopez.     Thus, it seems that any inconvenience or prejudice that

the State may incur by not being able to admit the recordings
under    Wis.    Stat.    §    908.08      does    not     rise    to    the   level    of

substantial prejudice.              By concluding otherwise, the majority

ignores the fact that a circuit court must find more than mere

prejudice in order to deny a motion to withdraw a plea, it must

find substantial prejudice.

                                             C

       ¶236 In furtherance of her argument that the State was not

substantially prejudiced, Lopez advances that portions of the
tapes could still be shown even though admissibility under Wis.

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Stat. § 908.08 is no longer available.                        Yet,     the       majority      pays

short      shrift   to    the    relevant         law    that       would     allow      for    the

admission of the tapes.

       ¶237 Lopez        argues,      and    both      the    majority        and    dissenting

opinions in the court of appeals agree, that the visual portions

of the tapes are not hearsay and thus need not fall under a

hearsay      exception     in    order       to   be    admissible          at     trial.       The

majority      specifically           rejected     the     State's       argument         that    it

would be prejudiced by not being able to show A.O.'s physical

conditions, noting that the State "does not explain why it would

be precluded from displaying images of A.O.'s injuries without

playing the audio portion of the recordings."                                State v. Lopez,

No. 2011AP2733-CR, unpublished slip op. at 6 (Wis. Ct. App.

Sept. 26, 2012).          The dissent agreed with this analysis, stating

that       "A.O.   turning      16    does     not      interfere       with       the   State's

ability at trial to use the video of the interviews to show

A.O.'s injuries."          Id. at 7 (Lundsten, P.J., dissenting).

       ¶238 Furthermore,             Wis.     Stat.      §        908.08(7)2       specifically
permits      the    admission        of     audiovisual           recordings       of    children

under other relevant evidentiary rules even where the hearsay

exception in Wis. Stat. § 908.08(3) does not apply.                                 "Wis. Stat.

§   908.08(7)       permits      the      admission          of    a   child's       videotaped

statement under any applicable hearsay exception regardless of

whether the requirements of subsections (2) and (3) have been

       2
       Wisconsin Stat. § 908.08(7) provides in relevant part that
"a court or a hearing examiner may also admit into evidence an
audiovisual recording of an oral statement of a child that is
hearsay and is admissible under this chapter as an exception to
the hearsay rule."
                                9
                                                                               No.   2011AP2733.awb


met."     State v. Snider, 2003 WI App 172, ¶12, 266 Wis. 2d 830,

668 N.W.2d 784.

    ¶239 Lopez             suggests       that        one    such        applicable       hearsay

exception       is    the     residual       hearsay         exception         in     Wis.    Stat.

§ 908.03(24).              That    section       permits          the    admission       of    "[a]

statement       not    specifically         covered         by     any    of     the    foregoing

exceptions but having comparable circumstantial guarantees of

trustworthiness."            Wis. Stat. § 908.03(24).

    ¶240 In Snider, the court upheld the use of the residual

exception to admit an audiovisual recording of a child victim's

statement that did not meet the requirements set forth in Wis.

Stat. § 908.08.            266 Wis. 2d 830, ¶16.                  There, the State sought

to admit the recording after the victim testified because the

victim's       testimony       was      significantly         less       detailed       than    the

account    she       had    previously      given.           Id.,       ¶5.      The    defendant

objected as the taped statement was not made under oath and he

had not received 10 days prior notice as required by Wis. Stat.

§ 908.08.
    ¶241 On appeal, the Snider court concluded that the circuit

court    had     appropriately          considered          the    factors       enumerated      in

State    v.    Sorenson,          143   Wis.     2d    226,       245-46,       421    N.W.2d    77

(1988), and State v. Huntington, 216 Wis. 2d 671, 687-88, 575

N.W.2d     268       (1998),      and    determined          that        the     recording      was

admissible under Wis. Stat. § 908.03(24).                               Snider, 266 Wis. 2d

830, ¶19.       Those factors include:

    [T]he child's age, ability to communicate and familial
    relationship with the defendant; the person to whom
    the statement was made and that person's relationship
    to the child; the circumstances under which the
                              10
                                                                            No.   2011AP2733.awb

     statement was made, including the time elapsed since
     the alleged assault; the content of the statement
     itself, including any signs of deceit or falsity; and
     the existence of other corroborating evidence.
Id., ¶17 (citing Sorenson, 143 Wis. 2d at 245-46).

     ¶242 Here,           those        same     factors          may     militate       towards

admission of A.O.'s recorded statements.                               A.O. was 14 at the

time of the recordings.                As the circuit court concluded, she had

the age and level of development to understand the significance

of the events and verbalize them.                           A.O. had a close personal

relationship with Lopez, her mother.                         A.O. made the statements

to a social worker soon after the events occurred.                                Further, the

circuit     court        determined         that     A.O.        clearly     understood       the

difference between the truth and a lie and did not evince any

signs      of     fear,      guilt,     anxiety,        or       stress.          Lastly,     her

statements        were       corroborated       by    the     medical       reports     of    her

injuries. Accordingly, based on the factors in Snider, there

arguably are sufficient indicia of trustworthiness to admit the

recordings under the residual exception.

     ¶243 Overall, the ability of the State to admit portions,
if   not        the   entirety,        of     the    audiovisual           recordings       under

relevant        law   other     than    Wis.        Stat.    §    908.08     undermines       the

majority's determination that the State would suffer substantial

prejudice.

                                               III

     ¶244 In          sum,    the   majority         opinion,      though     lengthy,       does

very little to clarify the test for substantial prejudice.                                    Its

analysis ignores not only the lack of evidence in the record
supporting its conclusion of substantial prejudice, but also the

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                                                        No.   2011AP2733.awb


strong evidence remaining against Lopez, which may still include

portions, if not the entirety, of the videotapes.             As a result,

the majority strips any meaning from the word "substantial" as

used in our substantial prejudice analysis.

      ¶245 For the reasons set forth above, I determine, as did

the court of appeals, that the record and the law do not support

a   conclusion   of   substantial   prejudice   here.    Accordingly,     I

respectfully dissent.

      ¶246 I am authorized to state that CHIEF JUSTICE SHIRLEY S.

ABRAHAMSON joins this dissent.




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