00-3070 State v. Lopez

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“Where the defendant has shown a prima facie violation of Wis. Stat. sec. 971.08(1)(a) or other mandatory duties and alleges that he or she in fact did not know or understand the information which should have been provided at the plea hearing, the burden will then shift to the State to show by clear and convincing evidence that the defendant’s plea was knowingly, voluntarily, and intelligently entered, despite the inadequacy of the record at the time of the plea’s acceptance. …

“We hold that the court’s colloquy of Sept. 8, 1999, cannot be relied upon by the court to show that it fulfilled its duty under Wis. Stat. sec. 971.08(1)(a). Even though the Sept. 8, 1999 transcript shows that the circuit court mentioned the elements and some of the concepts, it does not show that the circuit court ‘determined,’ as it is required to do under sec. 971.08(1)(a), that Lopez had an ‘understanding of the nature of the charge.’ In fact, after Lopez said ‘[t]hat, about those three charges, are not true,’ the circuit court seemed to determine the opposite. It stopped the colloquy and set the case for trial.”

Reversed and remanded.

Recommended for publication in the official reports.

Dist II, Kenosha County, Bastianelli, J., Anderson, J.

Attorneys:

For Appellant: Margaret A. Maroney, Madison

For Respondent: Robert J. Jambois, Kenosha; Brett A. Balinsky, Madison