00-1718 State v. Leitner

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“The trial court properly denied the motion because it was not supported by a preponderance of evidence showing that Leitner actually had an alibi witness which he had previously chosen to conceal. At the hearing on his motion to withdraw his plea, Leitner did not produce his fiancée and did not offer his own testimony. He provided no details about what his fiancée might say if she testified. He did not even specify when she had miscarried. By neither specifying nor offering evidence of these details, Leitner failed to meet his burden of proof.”

Further, there was sufficient evidence to support the trial court’s conclusion that the real reason for defendant’s belated request for a plea withdrawal was the highly negative presentence report, not concern for involving his then-pregnant girlfriend as an alibi witness.

Finally, even though the sentencing court considered the behavior underlying defendant’s prior expunged convictions, which had also involved hit-and-run while intoxicated, there was no error because the plain language of the expungement statute (Wis. Stat. 973.015) does not prohibit a sentencing court from considering behavior underlying an expunged conviction.

Judgment affirmed.

Recommended for publication in the official reports.

Dist IV, La Crosse County, Mulroy, J., Lundsten, J.