State v. Lopez, No. 2011AP2733–CR.

CourtUnited States State Supreme Court of Wisconsin
Writing for the CourtANNETTE KINGSLAND ZIEGLER
Citation2014 WI 11,843 N.W.2d 390,353 Wis.2d 1
PartiesSTATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. Minerva LOPEZ, Defendant–Appellant.
Decision Date07 March 2014
Docket NumberNo. 2011AP2733–CR.

353 Wis.2d 1
843 N.W.2d 390
2014 WI 11

STATE of Wisconsin, Plaintiff–Respondent–Petitioner,
v.
Minerva LOPEZ, Defendant–Appellant.

No. 2011AP2733–CR.

Supreme Court of Wisconsin.

Argued Sept. 3, 2013.
Decided March 7, 2014.


[843 N.W.2d 391]


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.


ANNETTE KINGSLAND ZIEGLER, J.

¶ 1 This is a review of an unpublished decision of the court of appeals,

[843 N.W.2d 392]

State v. Lopez, No. 2011AP2733–CR, unpublished slip op. (Wis.Ct.App. Sept. 26, 2012), reversing the Dane County Circuit Court's 1 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 ‘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 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 complaint in part, by using audiovisual

[843 N.W.2d 393]

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.


¶ 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 [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

[843 N.W.2d 394]

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 would “ ‘lose it’ and have this ‘Dstupid 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.

¶ 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...

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11 practice notes
  • State v. Shata, No. 2013AP1437–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 9, 2015
    ...his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced.’ ” State v. Lopez, 2014 WI 11, ¶ 2, 353 Wis.2d 1, 843 N.W.2d 390 (alteration added in Lopez ) (emphasis added) (quoting State v. Jenkins, 2007 WI 96, ¶ 2, 303 Wis.2d 157, 7......
  • State v. Ortiz-Mondragon, No. 2013AP2435–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 9, 2015
    ...his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced.’ ” State v. Lopez, 2014 WI 11, ¶ 2, 353 Wis.2d 1, 843 N.W.2d 390 (alteration added in Lopez ) (emphasis added) (quoting State v. Jenkins, 2007 WI 96, ¶ 2, 303 Wis.2d 157, 7......
  • State v. Ortiz-Mondragon, No. 2013AP2435–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 9, 2015
    ...his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced.’ " State v. Lopez, 2014 WI 11, ¶ 2, 353 Wis.2d 1, 843 N.W.2d 390 (alteration added in Lopez ) (emphasis added) (quoting State v. Jenkins, 2007 WI 96, ¶ 2, 303 Wis.2d 157, 7......
  • State v. Shata, No. 2013AP1437-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • July 9, 2015
    ...his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced.'" State v. Lopez, 2014 WI 11, ¶2, 353 Wis. 2d 1, 843 N.W.2d 390 (emphasis added) (quoting State v. Jenkins, 2007 WI 96, ¶2, 303 Wis. 2d 157, 736 N.W.2d 24) (internal quotat......
  • Request a trial to view additional results
10 cases
  • State v. Shata, No. 2013AP1437–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 9, 2015
    ...his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced.’ ” State v. Lopez, 2014 WI 11, ¶ 2, 353 Wis.2d 1, 843 N.W.2d 390 (alteration added in Lopez ) (emphasis added) (quoting State v. Jenkins, 2007 WI 96, ¶ 2, 303 Wis.2d 157, 7......
  • State v. Ortiz-Mondragon, No. 2013AP2435–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 9, 2015
    ...his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced.’ ” State v. Lopez, 2014 WI 11, ¶ 2, 353 Wis.2d 1, 843 N.W.2d 390 (alteration added in Lopez ) (emphasis added) (quoting State v. Jenkins, 2007 WI 96, ¶ 2, 303 Wis.2d 157, 7......
  • State v. Ortiz-Mondragon, No. 2013AP2435–CR.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 9, 2015
    ...his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced.’ " State v. Lopez, 2014 WI 11, ¶ 2, 353 Wis.2d 1, 843 N.W.2d 390 (alteration added in Lopez ) (emphasis added) (quoting State v. Jenkins, 2007 WI 96, ¶ 2, 303 Wis.2d 157, 7......
  • State v. Shata, No. 2013AP1437-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • July 9, 2015
    ...his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced.'" State v. Lopez, 2014 WI 11, ¶2, 353 Wis. 2d 1, 843 N.W.2d 390 (emphasis added) (quoting State v. Jenkins, 2007 WI 96, ¶2, 303 Wis. 2d 157, 736 N.W.2d 24) (internal quotat......
  • Request a trial to view additional results

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