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State v. Earley2/13/2002
. Duane A. Earley has appealed from a judgment convicting him of causing great bodily injury by the operation of a motor vehicle while under the influence of an intoxicant in violation of Wis. Stat. § 940.25(1)(a) (1999-2000). He has also appealed from an order denying his motion to withdraw his no contest plea. We affirm the judgment and order.
. Earley's conviction arose from a motor vehicle accident which occurred in the early morning hours of August 22, 1999. Earley's pickup truck collided with a motorcycle driven by Daniel Kerkman. According to the criminal complaint filed against Earley, two witnesses told the police that they "had seen the motorcycle struck by the pickup truck." As a result of the accident, Kerkman's foot was amputated. Evidence indicated that Earley was intoxicated at the time of the accident. Earley subsequently pled no contest to a charge of violating Wis. Stat. § 940.25(1)(a), which prohibits "caus great bodily harm to another human being by the operation of a vehicle while under the influence of an intoxicant."
. A defendant is entitled to withdraw a no contest plea if he or she establishes by clear and convincing evidence that failure to allow the withdrawal would result in a manifest injustice. State v. Black, 2001 WI 31, , 242 Wis. 2d 126, 624 N.W.2d 363. We review the trial court's denial of a motion to withdraw a no contest plea under an erroneous exercise of discretion standard. Id.
. A manifest injustice exists if the defendant's plea was not knowingly, voluntarily and intelligently entered. State v. Giebel, 198 Wis. 2d 207, 212, 541 N.W.2d 815 (Ct. App. 1995). A plea is not knowing and intelligent unless the defendant has a full understanding of the nature of the charges against him or her. State v. Bollig, 2000 WI 6, , 232 Wis. 2d 561, 605 N.W.2d 199. "An understanding of the nature of the charge must include an awareness of the essential elements of the crime." State v. Bangert, 131 Wis. 2d 246, 267, 389 N.W.2d 12 (1986).
. To establish that he or she lacked an understanding of the charges against him or her, a defendant must show that the trial court failed to comply with the procedural requirements included in Wis. Stat. § 971.08, and must allege that he or she did not understand or know the information that should have been provided at the plea hearing. Bollig, 2000 WI 6 at . If the defendant makes a prima facie showing that his or her plea was accepted without compliance with the procedures set forth in Wis. Stat. § 971.08 and has also properly alleged that he or she did not understand or know the information that should have been provided at the plea hearing, the burden shifts to the State to show by clear and convincing evidence that the plea was knowingly, voluntarily and intelligently entered, despite the inadequacy of the record at the time of the plea's acceptance. Bollig, 2000 WI 6 at ; Bangert, 131 Wis. 2d at 274. The State may utilize the entire record, including the record created at the hearing on the motion to withdraw the plea, to demonstrate that the defendant in fact possessed the constitutionally required understanding and knowledge which the defendant alleges the inadequate plea colloquy failed to afford him or her. Bangert, 131 Wis. 2d at 274-75.
. On appellate review of an order denying a motion to withdraw a no contest plea, we will not upset the trial court's findings of historical or evidentiary facts unless they are clearly erroneous. Bollig, 2000 WI 6 at . However, the issue of whether the plea was knowingly and intelligently entered presents a question of constitutional fact which we review independently of the trial court. Id.
. As set forth in Wis JI-Crimin
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