State justices will not allow child abuser to withdraw plea

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A woman who repeatedly beat her daughter, leaving her scarred and disfigured, will not be allowed to withdraw her no contest plea, the Wisconsin Supreme Court ruled Friday.

Minerva Lopez, 38, is serving a 20-year prison sentence, which will be followed by 10 years extended supervision, for six counts of child abuse. Her husband, Porfirio Olivas, is also serving a 20-year prison sentence, though he will be on extended supervision for 37 years.

The court’s opinion states that Lopez – who was arrested in September 2008 and is in the Taycheedah Correctional Institution in Fond du Lac – struck her minor daughter “A.O.” with a baseball bat, metal broom handle, a frying pan and cut her with a knife, among other actions. Doctors said the child may be permanently disfigured from the beatings.

Lopez was sentenced after a no contest plea and after testifying against Olivas during his trial. However, she moved to withdraw her plea on March 19, 2010, the day after Olivas was sentenced to prison.

Dane County Circuit Judge Nicholas McNamara denied that motion, though, explaining that large parts of a video interview with A.O. would not be admissible in a trial because the child would be older than 16 by the time a trial took place.

The Court of Appeals overturned McNamara’s decision. But the Supreme Court, in a 5-2 decision and an opinion authored by Justice Annette Ziegler, overturned the Court of Appeals, explaining that prosecutors proved the video would be an essential piece of evidence if the case went to trial.

“While it is true that portions of the recordings could be deemed admissible at trial, that outcome is far from certain,” the opinion reads. “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 …”

The justices’ opinion also questions Lopez’s motives for filing the plea withdrawal, since it came so soon after her husband was given a lengthy prison sentence. It also details Lopez’s extensive problems with the attorneys representing her, and what Ziegler and McNamara sees as her numerous attempts to delay the court proceedings.

“The timing of her motion at least raises a question regarding the motivation underlying her change of heart,” the opinion reads.

Dane County Assistant District Attorney Corey Stephan, who prosecuted Lopez, declined to comment. Lopez’s attorney, Patricia FitzGerald, said Friday morning that she had not yet read the opinion.

The opinion goes into extensive detail about the abuse A.O. endured.

In one instance, about three weeks before Lopez and Ovilas-Lopez were arrested, Lopez “choked A.O. for accidentally dropping pizza on the floor during dinner. A.O. lost consciousness and ‘peed her pants.’” Lopez only stopped because she feared that the “pigs would be here any minute,” and her daughter was forced to stand in the corner for the whole night.

“As A.O. began to fall asleep, Olivas threw ice water on her face,” the opinion reads.

A dissenting opinion authored by Justice Ann Walsh Bradley and co-signed by Chief Justice Shirley Abrahamson states that prosecutors presented no hard evidence to show how a case against Lopez would be harmed if her plea was withdrawn.

“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,” Bradley’s dissent reads. “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.”

Olivas, 43, appealed his case, but was denied in September. The state Supreme Court has not yet decided whether to take up his case. Follow @eheisigWLJ