Wisconsin Woman Can't Change Plea After Conviction for Savage Beatings of Daughter

Wisconsin case law summary by Attorney Richard Clem: Criminal law, change of plea.

State of Wisconsin v. Minerva Lopez. WI criminal law, change of plea

This case arose out of the savage beatings and abuse the Minerva Lopez and Porfirio Olivas-Lopez committed against their teenage daughter. On September 25, 2008, Madison Police Detective Robert Hale was dispatched to the defendants' home where he found the defendant's emaciated daughter in a closet with an injury to her head. The 14 year old girl was covered from head to toe with bruises and had bloody wounds to her head, a gash to her cheek, and various bruises. After she was rushed to the University of Wisconsin Children's Hospital, doctors found that her right kneecap was broken and that she had two broken fingers, one of which was an old break. The knee required surgery, and the doctors agreed that she would potentiall have life-long disabilities. She was diagnosed with physical abuse, serial torture, physical neglect, medical neglect, educational neglect, and great mental harm.

The detective later testified that when he rescued her, the victim was 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."

Three days later, Detective Hale interviewed Lopez, and she was surprisingly candid as to the abuse she had heaped upon her daughter. She admitted to hitting her head on multiple occasions with a metal broom and a frying pan. The attacks were so savage that both the broom and the frying pan were bent from the attacks. She admitted to whipping her daughter with a belt, punching her with her fist, and biting her.

She had poured hot water from the stove on her daughter merely because the daughter "wasn't hurrying enough."

She admitted to cutting her daughter with a knife multiple times. The daughter had screamed and there was a lot of blood.

In October, the daughter conducted a series of video recorded interviews in which she detailed these and other beatings. On the day when police finally rescued her, she had been beaten with a metal baseball bat.

Lopez was charged with dozens of counts of child abuse, and the state stated its intention to use the videotapes of the victim interviews at trial. Wisconsin Statute 908.08 allows use of such tapes at trial, but there is an important condition of that statute. The statute requires that the victim be under the age of 16 at the time of trial.

Lopez went through at least three public defenders before her eventual conviction. The first and second attorneys were given permission to withdraw at the defendant's request. She didn't like the third attorney, either, and this attorney filed a motion to withdraw. At this point, the judge ruled that "there is nothing in the law that says the defendant has to like her attorney," and denied the request. The court listened to the defendant's rambling comments and noted that most of them had to do with her background and upbringing and had nothing to do with whether she could get along with her attorney.

The trial court then determined that the video tapes of the victim interviews would be partially admissible at trial under Wisconsin Statute 908.08 and set a trial date for December 2009, at which time the victim would still be under 16 years old.

Apparently well aware of the overwhelming evidence of guilt against her, Lopez finally decided to change her plea to guilty. She pleaded no contest to six of the 22 charges against her. The trial court ordered a presentence report. Meanwhile, the case against the father was still pending, and Lopez was one of the witnesses against him, even though an agreement to testify in that case was not any part of a plea agreement.

About three months after the father's trial, the court received the presentence report, which recommended that Lopez spend 22-25 years in prison, followed by 12 years of extended supervision, and no contact with her children.

The next day, apparently displeased with the prospect of spending the next 20 years in prison, the defendant told the court that she had changed her mind, and that she wanted to change her plea and take her chances at trial. Her third attorney once again asked permission to withdraw from the case. He advised the court that he had advised his client to accept the plea agreement, and now that she had changed her mind, this placed him in a position adversarial to his client. The court grudgingly agreed, and a fourth public defender was assigned to the case.

Lopez didn't like the fourth attorney, either, and ordered him to try to withdraw. The trial judge was tired of the parade of attorneys in the case, and denied this request. The fourth attorney filed the formal motion to withdraw the plea and the court heard evidence.

The trial court ruled that the plea had been made knowingly, intelligently, and voluntarily. But after listening to the defendant's confusing rationale, the trial court conceded that she might have legal grounds to withdraw the plea, even though it was a close call. But the court denied the motion because the state would be prejudiced by the delay. By the time the case could get to trial after the delays caused by a change of plea, the victim would be over 16 years old at the time of trial. And under Wisconsin Statute 908.08, the video tape interviews with the victim would no longer be admissible evidence.

The court conceded that the tapes would not automatically come into evidence at trial. But one reason why they could be used would be if the victim had forgotten details of the beatings. And the trial judge, Dane County Circuit Judge Nicholas J. McNamara, reasoned that this was a distinct possibility. He reasoned that as part of her recovery, the victim had a need to try to forget what had happened to her, and that she had hopefully already forgotten some of the horrendous details of her abuse. Since the tapes would no longer be available to fill in the gaps, because the victim would be 16, he held that this would substantially prejudice the state's case. Therefore, he denied her motion to withdraw the plea. The defendant was then sentenced to 20 years in prison, followed by 10 years of extended supervision.

Dissatisfied with this outcome, Lopez appealed the case to the Wisconsin Court of Appeals. In an unpublished opinion released on September 26, 2012, The Court of Appeals, Judges Higginbotham and Sherman, reversed. They held that since the legislature had imposed the age limit in the statute, application of the statute could not be prejudicial. Appeals Judge Paul Lundsten dissented from the opinion and would have affirmed the conviction. The state asked the Wisconsin Supreme Court to take the case, and the Supreme Court agreed to take it.

The Supreme Court released its decision, authored by Justice Annette Kingsland Ziegler, on March 7, 2014. The Supreme Court reversed the decision of the court of appeals, agreed with Judge McNamara's resolution of the case, and upheld the conviction.

The high court reasoned that it was likely that the tapes would have been admitted at the originally scheduled trial. Because of the delay from the defendant's changing her mind about the plea, the victim would be over 16 by the time of trial, and the tapes could no longer be used. The Court agreed that this would significantly prejudice the state's case.

The Court took special note of what it called Lopez's "dilatory pre-trial conduct and her more recent post-plea enthusiasm" as contributing to this prejudice. The Court agreed with Judge McNamara's observation that the defendant's behavior was at a "point reaching absurdity and obvious delaying and obstruction."

For these reasons, the high court held that the loss of this videotape evidence amounted to substantial prejudice to the state, and held that the trial court properly denied the motion to withdraw the plea. Therefore, it reversed the Court of Appeals and upheld the conviction.

Justice David T. Prosser offered a concurring opinion. While he agreed with the majority's resolution, he would have gone further and imposed a higher burden for defendants wishing to withdraw their pleas. Justice Michael J. Gableman agreed with this reasoning.

Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley dissented, and would have affirmed the Court of Appeals. They called the belief of the victim's memory loss to be "speculation." Chief Justice Abrahamson went further, and penned a scathing criticism of Justice Prosser's suggestion that the grounds for withdrawing pleas be modified.

2008 Criminal Complaint.

No. 2011AP2733-CR (Wis. Mar. 7, 2014)

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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