State v. Melisa Valadez ( 2016 )

2016 WI 4SUPREME COURT OF WISCONSIN
CASE NO.: 2014AP678, 2014AP279 & 2014AP680
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Melisa Valadez,
Defendant-Appellant.
ON CERTIFICATION FROM THE COURT OF APPEALS
(No Cites)
OPINION FILED: January 28, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: October 6, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Walworth
JUDGE: David M. Reddy
JUSTICES:
CONCUR & DISSENT: Ziegler, J. joined by Gableman, J.
DISSENTED: Prosser, J. joined by Roggensack, C.J.
NOT PARTICIPATING: R. Bradley, J.
ATTORNEYS:
For the defendant-appellant, there were briefs by David
Ziemer, Glendale, and Marc E. Christopher and Christopher Law
Office, LLC, Milwaukee and oral argument by Marc E. Christopher.
For the plaintiff-respondent, the cause was argued by Nancy
A. Noet, assistant attorney general, with whom on the brief was
Brad D. Schimel, attorney general.
2016 WI 4NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2014AP678, 2014AP679 & 2014AP680
(L.C. No. 2005CF83, 2005CM257 & 2004CM245)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v.
JAN 28, 2016
Melisa Valadez,
Diane M. Fremgen
Defendant-Appellant. Clerk of Supreme Court
APPEAL from an order of the Circuit Court for Walworth
County, David M. Reddy, Judge. Reversed and remanded.
¶1 SHIRLEY S. ABRAHAMSON, J. This case involves the
intersection of Wisconsin criminal law and federal immigration
law.1
1
For general primers on various aspects of the intersection
of criminal law and immigration law, see Margaret Colgate Love,
Jenny Roberts & Cecelia Klingele, Collateral Consequences of
Criminal Convictions: Law, Policy and Practice §§ 2:46-:60
(2013 ed.); Dan Kesselbrenner, Lory D. Rosenberg & Maria
Baldini-Potermin, Immigration Law & Crimes (2015 ed.).
(continued)
Nos. 2014AP678, 2014AP679 & 2014AP680
¶2 This is an appeal from an order of the Circuit Court
for Walworth County, David M. Reddy, Judge. The circuit court
denied the motion of the defendant, Melisa Valadez, to withdraw
her guilty pleas.
¶3 Ms. Valadez's motion to withdraw her guilty pleas is
based on Wis. Stat. § 971.08(2) (2011-12).2 Before we examine
§ 971.08(2), we examine § 971.08(1)(c). Wisconsin Stat.
§ 971.08(1)(c) requires that before a circuit court accepts a
plea of guilty or no contest, the circuit court
"shall . . . [a]ddress the defendant personally and advise the
defendant as follows: 'If you are not a citizen of the United
States of America, you are advised that a plea of guilty or no
contest for the offense with which you are charged may result in
deportation, the exclusion from admission to this country or the
denial of naturalization, under federal law.'"
¶4 The circuit court's colloquies with Ms. Valadez did
not adhere to this statute. Judge John R. Race and Judge Robert
J. Kennedy presided over the criminal proceedings in which Ms.
Valadez entered guilty pleas. Neither of the circuit courts
For information supplied by the federal agency responsible
for naturalization, see U.S. Customs & Immig. Serv., Citizenship
Through Naturalization, http://www.uscis.gov/us-
citizenship/citizenship-through-naturalization. For information
regarding prosecutorial discretion in deportation cases, see
U.S. Immigration and Customs Enforcement, Immigration Action,
https://www.ice.gov/immigrationAction.
2
All subsequent references to the Wisconsin Statutes are to
the 2011—12 version unless otherwise indicated.
2
Nos. 2014AP678, 2014AP679 & 2014AP680
advised Ms. Valadez of the immigration consequences of a guilty
plea as required by Wis. Stat. § 971.08(1)(c).
¶5 If a circuit court fails to advise a defendant of the
immigration consequences (as required by Wis. Stat.
§ 971.08(1)(c)) and if the defendant shows that the plea is
"likely" to result in the defendant's deportation,3 exclusion
from admission to this country, or denial of naturalization, the
circuit court must ("shall") permit withdrawal of the plea and
permit the defendant to enter another plea.
¶6 Section 971.08(2) provides as follows:
(2) If a court fails to advise a defendant as required
by sub. (1)(c) and a defendant later shows that the
plea is likely to result in the defendant's
deportation, exclusion from admission to this country
or denial of naturalization, the court on the
defendant's motion shall vacate any applicable
judgment against the defendant and permit the
defendant to withdraw the plea and enter another plea.
This subsection does not limit the ability to withdraw
a plea of guilty or no contest on any other grounds.
¶7 The court of appeals certified the instant case to
this court pursuant to Wis. Stat. § (Rule) 809.61.
¶8 The appeal presents two questions:
1. Did Melisa Valadez's motion to withdraw her pleas of
guilty satisfy the "likely" statutory criterion in
Wis. Stat. § 971.08(2) for mandatory vacation of the
judgments of conviction, that is, did she show that
3
Federal statutes refer to deportation as "removal." See
Padilla v. Kentucky, 559 U.S. 356, 364 n.6 (2010). We use the
terms "removal" and "deportation" interchangeably.
3
Nos. 2014AP678, 2014AP679 & 2014AP680
her guilty pleas were "likely" to result in her
exclusion from admission to this country?4
2. Is there a time limit for a defendant to file a
motion to withdraw a plea based on Wis. Stat.
§ 971.08(2)?5 The court of appeals further
inquired: "How would such a time limit fit in with
the possible need to await actual deportation
proceedings before moving to withdraw the plea?"
4
The court of appeals framed the issue as follows: "How
definite or imminent must deportation be in order for it to be
'likely' such that a defendant may withdraw a guilty or no
contest plea on the basis that he or she was not informed of the
immigration consequences at the plea colloquy?"
The circuit court and court of appeals focused
predominantly on deportation, although they occasionally
referred to the other two immigration consequences——exclusion
from admission to this country and denial of naturalization.
We restate the issue to reflect the key arguments of the
parties in this court. Both parties briefed the immigration
consequence of deportation, and Ms. Valadez briefed the
consequence of denial of naturalization. However, especially in
oral argument, the parties focused on Ms. Valadez's likely
exclusion from admission as the ground for withdrawing her
pleas, not deportation or denial of naturalization. This court
does not have to reach the issues of either deportation or
denial of naturalization because Ms. Valadez has met the burden
of proving that exclusion from admission is likely.
Deportation has been addressed by this court in State v.
Negrete, 2012 WI 92, 343 Wis. 2d 1, 819 N.W.2d 749; State v.
Shata, 2015 WI 74, 364 Wis. 2d 63, 868 N.W.2d 93; and State v.
Ortiz-Mondragon, 2015 WI 73, 364 Wis. 2d 1, 866 N.W.2d 717.
5
See State v. Romero-Georgana, 2014 WI 83, ¶67 n.14, 360
Wis. 2d 522, 849 N.W.2d 668.
4
Nos. 2014AP678, 2014AP679 & 2014AP680
¶9 In response to the first question, for the reasons set
forth, we conclude that Ms. Valadez has demonstrated that the
circuit court did not comply with Wis. Stat. § 971.08(1)(c) and
that her guilty pleas are "likely" to result in her exclusion
from admission to this country. Because Ms. Valadez has shown
that her guilty pleas are "likely" to result in her exclusion
from admission to this country, we need not reach the question
of whether her pleas are also "likely" to result in deportation
or denial of naturalization. Accordingly, we reverse the order
of the circuit court and remand the cause to the circuit court
to vacate the judgments of conviction and to permit Ms. Valadez
to withdraw her guilty pleas and enter new pleas.
¶10 The court of appeals raised the second question
because although the majority opinion in State v. Romero-
Georgana, 2014 WI 83, ¶67 n.14, 360 Wis. 2d 522, 849 N.W.2d 668,
did not adopt a time limit on a Wis. Stat. § 971.08(2) motion,
it strongly suggested that (at least in certain circumstances)
there should be a time limit.6
¶11 We do not respond to the second question. Although
both parties discussed the time limit issue in their briefs,
neither party argued in this court for a time limit for plea
withdrawal under Wis. Stat. § 971.08(2), and both parties agreed
that even if the court were to adopt a time limit, Ms. Valadez's
motion is timely. At oral argument, the State conceded it was
6
The motion in Romero-Georgana was not a Wis. Stat.
§ 971.08(2) motion; it was a § 974.06 motion.
5
Nos. 2014AP678, 2014AP679 & 2014AP680
not arguing for a time limit on motions under Wis. Stat.
§ 971.08(2), and even if the court were to adopt a time limit,
Ms. Valadez's motion was timely.7
¶12 In Romero-Georgana, the court noted that four months
before the defendant's postconviction motion under Wis. Stat.
§ 974.06 was filed, the federal government had started an
7
The following exchange between Justice Ann Walsh Bradley
and the assistant attorney general representing the State is
informative:
Justice Ann Walsh Bradley: I have a question . . . .
As I read on page 13 of your brief going on to page 14
it says, "like many similar defendants, Valadez did
not pursue additional post-conviction relief beyond
the motions underlying this consolidated appeal."
Next sentence. "Even if she had, however, her [Wis.
Stat. §] 971.08(2) claims should not be barred later
because they are not yet viable." I saw that with
some dissonance to footnote 14 in our Romero-Georgana
case. I mean——I don't think you're embracing the time
limit suggested for a 971.08(2).
Assistant Attorney General: No, I'm not, and I don't—
—I certainly don't think it's operable here. As the
court pointed out earlier, the defendant in Romero-
Georgana had filed several post-conviction motions
already on notice, because he had been served with a
detainer from Homeland Security that he was subject to
immigration proceedings. So with knowledge of a ripe
claim he sat on it. And that's what I think Romero-
Georgana in that footnote speaks to and that's
certainly not what's going on here.
Justice Ann Walsh Bradley: And you are not advocating
that there be a time limit. Is it correct you are not
advocating that there be a time limit imposed on
971.08(2) claims? Is that correct?
Assistant Attorney General: Yes.
6
Nos. 2014AP678, 2014AP679 & 2014AP680
investigation into the defendant's deportability.8 Nevertheless,
the defendant in Romero-Georgana pressed forward with his Wis.
Stat. § 974.06 motion, without bringing a Wis. Stat. § 971.08(2)
motion, and without asking the court to construe the Wis. Stat.
§ 974.06 motion as a Wis. Stat. § 971.08(2) motion.9
¶13 Under those circumstances, the Romero-Georgana court
expressed concern about judicial efficiency, stating that
"[w]hen a defendant has notice that he is likely to be deported
and subsequently brings postconviction claims unrelated to Wis.
Stat. § 971.08(2), we think it would be unwise to allow him to
bring his claim as a § 971.08(2) motion at a later time,
although he may be able to bring his claim as a Wis. Stat.
§ 974.06 motion if he has a sufficient reason for the delay."10
¶14 The circumstances that concerned the court in Romero-
Georgana are not at issue here. Ms. Valadez has not brought
other postconviction motions. Ms. Valadez has not, with notice
of a ripe claim, sat on her rights. Moreover, neither Ms.
Valadez's counsel nor the State argued for a time limit on Wis.
Stat. § 971.08(2) motions, and the State conceded that Ms.
Valadez's motion would be timely even under the time limit
suggested in Romero-Georgana.
8
Romero-Georgana, 360 Wis. 2d 522, ¶67 n.14.
9
Id.10
Id.7
Nos. 2014AP678, 2014AP679 & 2014AP680
¶15 Because the parties agree and do not present
adversarial positions, we do not address the second question.11
I
¶16 The facts are not in dispute for purposes of this
appeal.
¶17 The defendant, Melisa Valadez, is not a citizen of the
United States. She became a Lawful Permanent Resident (LPR) in
2001, when she was 15 years old. Her three children were born
in the United States.
¶18 Ms. Valadez was convicted in 2004 and 2005 (when she
was 19 years old) of possession of cocaine, possession of THC,
and possession of drug paraphernalia in three separate cases on
pleas of guilty.12 To the extent it may be relevant under
federal immigration law,13 the offenses underlying the first two
cases——possession of cocaine, two counts of possession of THC,
and two counts of possession of drug paraphernalia——occurred
when Ms. Valadez was 18 years old. The offense underlying the
11
See State v. Denk, 2008 WI 130, ¶32 n.5, 315 Wis. 2d 5,
758 N.W.2d 775 (stating that while the court of appeals'
certification included several additional questions, "[t]hese
questions are tangential to our inquiry . . . ."); State v.
Popanz, 112 Wis. 2d 166, 168 n.3, 332 N.W.2d 750 (1983)
(refusing to answer a second certified question because the case
was resolved on other grounds)
12
On Ms. Valadez's motion, the court of appeals
consolidated the three cases to facilitate briefing and
disposition.
13
See, e.g., 8 U.S.C. §§ 1182(a)(2)(A)(ii)(I),
1227(a)(2)(A)(i).
8
Nos. 2014AP678, 2014AP679 & 2014AP680
third case, possession of THC as a repeater, occurred when she
was 19 years old.
¶19 The transcripts of the plea hearings clearly show that
the circuit court failed to warn Ms. Valadez, as required by
Wis. Stat. § 971.08(1)(c), that her pleas and subsequent
convictions may have immigration consequences.
¶20 As a result of these convictions, Ms. Valadez served
jail time and was placed on probation. She was ordered to pay
fines, have an AODA assessment, and get alcohol counseling. She
has fulfilled all the conditions imposed by the circuit courts
and has had no subsequent convictions in the decade since these
2004-2005 convictions.
¶21 In 2013, Ms. Valadez filed a motion under Wis. Stat.
§ 971.08(2) to withdraw her guilty pleas, arguing that as a
result of the convictions she is unable to renew her LPR card;
she is subject to deportation; she likely would be excluded from
admission to the United States if she left the country; and she
likely would be denied naturalization if she applied to become a
naturalized American citizen.
¶22 At the initial hearing on Ms. Valadez's motion to
withdraw her plea, the circuit court granted her additional time
to attempt to acquire an affidavit or some narrative of verbal
communications with a federal agent in order to meet the
requirements of this court's decision in State v. Negrete, 2012
WI 92, 343 Wis. 2d 1, 819 N.W.2d 749.
¶23 To supplement Ms. Valadez's initial brief, defense
counsel submitted e-mail communications between counsel and an
9
Nos. 2014AP678, 2014AP679 & 2014AP680
Immigration and Customs Enforcement (ICE) Special Agent. The e-
mails were introduced apparently to confirm a telephone call
between defense counsel and the ICE Special Agent regarding
immigration law and enforcement practices. The e-mails did not
confirm or challenge defense counsel's views of immigration law.
¶24 Citing Negrete (especially footnote 8), the circuit
court denied Ms. Valadez's motion to withdraw her pleas.
Footnote 8 in Negrete states as follows:
More specifically, if a defendant chooses to establish
that the crime to which the defendant pleaded is one
for which the defendant would have been subject to
potentially adverse immigration consequences under
controlling federal law, the defendant should cite the
federal law upon which reliance is placed. For
example, under federal law, 8 U.S.C. § 1227 (2006)
delineates numerous categories of aliens who are
potentially deportable. Relevant to motions under
Wis. Stat. § 971.08(2) is the federal statute
providing that "[a]ny alien who is convicted of an
aggravated felony at any time after admission is
deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). See
State v. Baeza, 174 Wis. 2d 118, 127, 496 N.W.2d 233(Ct. App. 1993).
In addition, in such a motion, a defendant should
allege that the federal government has conveyed its
intent to impose one of the enumerated immigration
consequences set out in Wis. Stat. § 971.08(2). This
required nexus between the crime to which a plea was
made and adverse immigration consequences can be
demonstrated by alleging facts that show that, because
of his plea, the defendant has become subject to
deportation proceedings, has been excluded from
admission to the country, or has been denied
naturalization.
Negrete, 343 Wis. 2d 1, ¶27 n.8.
¶25 Relying on footnote 8 in Negrete, the circuit court
reasoned that Ms. Valadez had not met the statutory standard of
10
Nos. 2014AP678, 2014AP679 & 2014AP680
"likely" to suffer the enumerated immigration consequences,
because she is not presently the object of a proceeding for
deportation, exclusion from admission, or denial of
naturalization. The circuit court concluded the hearing
stating: "Gratuitously, I will say that I think that this area
is ripe for some clarification from the appellate court."
¶26 The court of appeals certified the instant case to
this court. The court of appeals wrote that the "degree of
certainty necessary to show, for purposes of plea withdrawal
under Wis. Stat. § 971.08(2), that a defendant is likely to
suffer immigration consequences as a result of a guilty plea is
not clear under existing case law."
II
¶27 This case requires us to interpret and apply Wis.
Stat. § 971.08(2) to the undisputed facts. The interpretation
and application of a statute to undisputed facts are ordinarily
questions of law which this court determines independently of
the circuit court and court of appeals, but benefiting from
their analyses.14 We begin with the text of the statute and
examine case law interpreting and applying the statute.
III
¶28 In order to withdraw a guilty or no contest plea under
Wis. Stat. § 971.08(2), the statute requires a defendant to
14
State v. Negrete, 2012 WI 92, ¶15, 343 Wis. 2d 1, 819
N.W.2d 749; State v. Bobby G., 2007 WI 77, ¶42, 301 Wis. 2d 531,
734 N.W.2d 81.
11
Nos. 2014AP678, 2014AP679 & 2014AP680
allege: (1) that the circuit court "fail[ed] to advise [the]
defendant as required by [Wis. Stat. § 971.08(1)(c)]"; and (2)
that the defendant's plea "is likely to result in the
defendant's deportation, exclusion from admission to this
country, or denial of naturalization . . . ."15
¶29 No one disputes that Ms. Valadez has met the first
requirement. Transcripts of the plea colloquies are available;
the circuit courts did not provide the immigration warning
required under Wis. Stat. § 971.08(1)(c). As case law
demonstrates, it is of utmost importance that circuit courts
adhere to § 971.08(1)(c) in plea colloquies.
¶30 At issue is whether Ms. Valadez showed that her guilty
pleas are "likely" to result in one of the enumerated
immigration consequences. If Ms. Valadez makes this showing,
she may withdraw her pleas and enter new ones, irrespective of
whether she was otherwise aware of such consequences. State v.
Douangmala, 2002 WI 62, ¶¶22-25, 42, 253 Wis. 2d 173, 646
N.W.2d 1.
¶31 Ms. Valadez was convicted more than 10 years ago for
violations of laws relating to controlled substances. She does
not allege she is the subject of a deportation proceeding.
According to the record, the federal government has not taken
any steps to deport her and has not manifested any intent to
deport her.
15
Wis. Stat. § 971.08(2) (emphasis added). See also State
v. Negrete, 2012 WI 92, ¶23, 343 Wis. 2d 1, 819 N.W.2d 749.
12
Nos. 2014AP678, 2014AP679 & 2014AP680
¶32 Ms. Valadez's case was not presented in this court,
however, as solely a deportation case. Ms. Valadez argues that
unlike many who seek to vacate guilty pleas by merely claiming
they are "likely" to be deportable, she is claiming that she is
"likely" to be excluded from admission.
¶33 Ms. Valadez claims that even though she is a Lawful
Permanent Resident, if she were to leave the United States and
seek to return, she would be excluded from admission as a result
of her convictions. She cites 8 U.S.C. 1182(a)(2)(A)(i)(II) to
support her claim.16
16
See 8 U.S.C. § 1182(a)(2)(A)(i)(II) (2012), providing:
Except as otherwise provided in this chapter, aliens
who are inadmissible under the following paragraphs
are ineligible to receive visas and ineligible to be
admitted to the United States:
. . . .
(2) Criminal and related grounds
(A) Conviction of certain crimes
(i) In general
Except as provided in clause (ii),
any alien convicted of, or who
admits having committed, or who
admits committing acts which
constitute the essential elements
of-
. . . .
(II) a violation of (or a
conspiracy or attempt to violate)
any law or regulation of a State,
the United States, or a foreign
(continued)
13
Nos. 2014AP678, 2014AP679 & 2014AP680
¶34 The State argues that Ms. Valadez's reliance on the
federal statutes that render her excluded from admission is
misplaced. According to the State, what would happen if Ms.
Valadez left the country and was excluded from admission does
not prove that she is likely to be excluded from admission.
¶35 Quoting extensively from the Negrete decision, the
State contends that Ms. Valadez has not met the burden set forth
in Negrete: She has failed, according to the State, to allege
facts showing that she is "likely" to be excluded from
admission.
¶36 Because Negrete interpreted Wis. Stat. § 971.08(2), we
examine Negrete. Negrete is distinguishable and does not govern
the instant case. The Negrete case governs a non-citizen's
motion to withdraw a guilty plea under Wis. Stat. § 971.08(2)
based on "likely" deportation. Although Negrete refers to the
other immigration consequences enumerated in Wis. Stat.
§ 971.08(2)——"likely" exclusion from admission to this country
or "likely" denial of naturalization17——Negrete was a deportation
country relating to a controlled
substance (as defined in section
802 of Title 21),
is inadmissible.
17
Negrete, 343 Wis. 2d 1, ¶5 n.5.
In two other cases, the court has addressed deportation.
The cases address ineffective assistance of counsel.
Ineffective assistance of counsel is not involved in the instant
case.
(continued)
14
Nos. 2014AP678, 2014AP679 & 2014AP680
case, and the standard it sets forth governs deportation; it
does not govern "likely" exclusion from admission.
¶37 In Negrete, the defendant pleaded guilty in 1992 to
one count of second-degree sexual assault of a person under the
age of 16, in violation of Wis. Stat. § 948.02(2) (1991-92).18
No transcript of the plea colloquy was available.19
¶38 Negrete sought to withdraw his guilty plea in 2010,
citing Wis. Stat. § 971.08(2). Negrete alleged in his motion to
In State v. Shata, 2015 WI 74, ¶¶59-61, 364 Wis. 2d 83, 868
N.W.2d 93, a case involving deportation and ineffective
assistance of counsel, this court noted that although a person
convicted of a violation of laws relating to controlled
substances is deportable, "such a conviction will not
necessarily result in deportation." The court concluded that
defense counsel did not render defective performance in advising
the defendant that his plea carried a strong chance of
deportation. Shata, 364 Wis. 2d 83, ¶79.
In State v. Ortiz-Mondragon, 2015 WI 73, 364 Wis. 2d 1, 866
N.W.2d 717, a case involving deportation and ineffective
assistance of counsel, Ortiz-Mondragon pleaded no contest to
felony battery. He failed to show that defense counsel rendered
deficient service when defense counsel conveyed the information
regarding immigration consequences contained in the plea
questionnaire and waiver of rights form.
18
Negrete, 343 Wis. 2d 1, ¶5.
19
Negrete, 343 Wis. 2d 1, ¶1. In Negrete, because no
transcript was available, the court turned to State v. Bentley,
201 Wis. 2d 303, 548 N.W.2d 50 (1996), and concluded that
Negrete failed to sufficiently allege that the plea-accepting
court did not tell him of the potential immigration consequences
of his plea. In the present case, the transcripts of the plea
colloquies are available and clearly show the circuit court
failed to give the required warnings. As a result, the
"Bentley-type" analysis conducted in Negrete is unnecessary
here. Negrete, 343 Wis. 2d 1, ¶33.
15
Nos. 2014AP678, 2014AP679 & 2014AP680
withdraw his plea that the circuit court did not inform him of
the potential immigration consequences of his plea. In
contrast, Negrete's affidavit stated that he "'d[id] not recall'
whether he received the necessary warning."20
¶39 Based on the equivocal assertions in the defendant's
motion and affidavit, the Negrete court concluded that Negrete
had not sufficiently alleged that the circuit court failed to
advise him of the potential immigration consequences of his
plea.21 Despite this ground for denying Negrete's motion, the
Negrete court moved on to discuss the "likely" prong of Wis.
Stat. § 971.08(2).
¶40 Negrete's motion alleged that he was "now the subject
of deportation proceedings."22 Negrete's affidavit alleged that
he was "now subject to deportation proceedings."23 The Negrete
court concluded that Negrete's "[b]are allegations of possible
deportation" were insufficient to show his plea was "likely" to
result in deportation.24
¶41 In deportation proceedings, immigration officials seek
out those who are deportable. Given the role of immigration
officials in seeking out those who are deportable, the Negrete
20
Negrete, 343 Wis. 2d 1, ¶35.
21
Id., ¶25.
22
Id., ¶¶15, 36 (emphasis added).
23
Id., ¶2 (emphasis added).
24
Id., ¶¶26, 36.
16
Nos. 2014AP678, 2014AP679 & 2014AP680
court held that Negrete's equivocal assertion that he was
"subject to" or "subject of" deportation was not sufficient to
show he was actually "likely" to be deported or that deportation
would be the result of the criminal offense.25 Negrete had to
allege facts demonstrating a causal nexus between the entry of
the guilty plea and the federal government's likely institution
of deportation proceedings.26 Bare allegations were not
sufficient.
¶42 In contrast to deportation, a non-citizen would have
to take affirmative steps in order to induce the federal
government to exclude the non-citizen from admission to the
United States. The federal government does not seek out
individuals who may be excluded from admission or otherwise
inform non-citizens that they may be excluded from admission to
this country based on convictions for violating laws relating to
controlled substances.
¶43 Instead, the federal government, through the statutes
governing admission to this country, excludes only non-citizens
with convictions for violating laws relating to controlled
substances who affirmatively seek admission to the country.
25
Compare Negrete, 343 Wis. 2d 1, ¶¶5, 36 (quoting
Negrete's motion, which stated that he was "now 'the subject of
deportation proceedings'") (emphasis added), with Negrete, 343
Wis. 2d 1, ¶2 (stating that "Negrete's affidavit also states
that he is now subject to deportation proceedings.") (emphasis
added).
26
Negrete, 343 Wis. 2d 1, ¶26.
17
Nos. 2014AP678, 2014AP679 & 2014AP680
Short of Ms. Valadez taking the affirmative step of leaving the
United States and actually being excluded from admission, Ms.
Valadez has no way aside from the immigration and naturalization
statutes to demonstrate that she is "likely" to be excluded from
admission.
¶44 Ms. Valadez's convictions are, as stated previously,
explicitly listed in federal statutes as grounds for exclusion
from admission. Based on the federal statutes, if Ms. Valadez
leaves the United States and attempts to gain readmission to
this country, the federal government will "likely" exclude her
from admission because of her convictions.
¶45 The circuit court mistakenly required Ms. Valadez to
show that the federal government has taken steps to exclude her
from admission. Section 971.08(2) does not require such a
showing. The statute requires only that a defendant show that
such a consequence is "likely." Here the text of the federal
statute and the necessity that a defendant take affirmative
steps to leave the country in order to actually be excluded from
admission satisfy the "likely" test. In other words, the
immigration and naturalization statutes demonstrate the
likelihood that Ms. Valadez will be excluded from admission.
¶46 Requiring Ms. Valadez to leave the country and seek
readmission to demonstrate that she is "likely" to be excluded
from admission is the equivalent of asking her to demonstrate
exclusion from admission to 100% certainty. Wisconsin Stat.
§ 971.08(2) requires an immigration consequence be "likely," not
"certain."
18
Nos. 2014AP678, 2014AP679 & 2014AP680
¶47 When questioned at oral argument about exclusion from
admission, the State conceded that "given her convictions, [Ms.
Valadez] is inadmissible," but attempted to distinguish between
her being inadmissible under the law and her actually being
excluded from admission.
¶48 We are not persuaded by this distinction. Ms. Valadez
has demonstrated that she will, as a matter of federal law, be
excluded from admission should she take the affirmative step of
leaving the country. She has thus shown she is likely to be
excluded from admission.
¶49 The Wisconsin legislature afforded relief to a
defendant "likely" to be excluded from admission. Wisconsin
Stat. § 978.02 does not require a defendant to show that he or
she actually has been excluded from admission or that the
federal government has manifested its intent to exclude the
defendant from admission other than through the federal law
providing for exclusion from admission.
¶50 To hold that Ms. Valadez cannot withdraw her guilty
pleas because the federal government has not excluded her from
admission is, as a matter of practicality, unworkable and
effectively expunges an enumerated consequence——exclusion from
admission——from Wis. Stat. § 971.08(2).27
27
"[S]tatutes are interpreted to avoid surplusage, giving
effect to each word." State v. Hemp, 2014 WI 129, ¶13, 359
Wis. 2d 320, 856 N.W.2d 811.
19
Nos. 2014AP678, 2014AP679 & 2014AP680
¶51 We are convinced that if Ms. Valadez left the United
States she would, as a matter of law, be excluded from
admission. As a result, we are persuaded that it is "likely"
that her guilty pleas will "result in [her] . . . exclusion from
admission." To deny Ms. Valadez the opportunity to withdraw her
pleas would render relief under the statutes illusory.
¶52 Because Ms. Valadez has met her burden of showing her
guilty pleas are "likely" to result in her exclusion from
admission to this country, we need not reach the question of
whether her pleas are also "likely" to result in deportation or
denial of naturalization.
¶53 In sum, Ms. Valadez has fulfilled the statutory
requirements for withdrawing her pleas. The circuit court
failed to give the warning required by Wis. Stat. § 971.08(1)(c)
and Ms. Valadez's guilty pleas are "likely" to result in her
exclusion from admission. Wis. Stat. § 971.08(2).
¶54 Accordingly, we reverse the order of the circuit court
denying Ms. Valadez's motion to withdraw her guilty pleas. We
remand the matter to the circuit court with directions to vacate
the judgments of conviction and permit Ms. Valadez to withdraw
her guilty pleas and enter other pleas.
¶55 By the Court.—The order of the circuit court is
reversed and the cause is remanded.
¶56 REBECCA G. BRADLEY, J., did not participate.
20
Nos. 2014AP678, 2014AP679, & 2014AP680.akz
¶57 ANNETTE KINGSLAND ZIEGLER, J. (concurring in part,
dissenting in part). I join the opinion of the court and its
conclusion to reverse the order of the circuit court. I agree
that under the specific facts of this case, and based on the
arguments raised, Valadez has established that her pleas are
likely to result in her exclusion from admission to this
country.
¶58 I do not join the decision to "remand the cause to the
circuit court to vacate the judgments of conviction and to
permit Ms. Valadez to withdraw her guilty pleas and enter new
pleas," majority op., ¶9, because there may be other impediments
to the withdrawal of Valadez's pleas. Instead, I would remand
for further proceedings, which may indeed result in withdrawal
of Valadez's guilty pleas or perhaps, could result in a
determination of how to proceed if the State has somehow
preserved the issues raised by Justice Prosser. If so, the
circuit court could be called upon to decide on remand whether
Valadez's motion to withdraw her guilty pleas is time-barred.
See, e.g., Stern v. WERC, 2006 WI App 193, ¶38, 296 Wis. 2d 306,
722 N.W.2d 594 (remanding to allow agency to decide whether
party had waived timeliness issue); Jungels v. Pierce, 825 F.2d
1127, 1132 (7th Cir. 1987) ("These are issues to be explored on
remand, unless waived.").
¶59 To be clear, even if not deemed to be properly raised
in the case at issue, however, arguments regarding the
application of time limits to a motion premised on Wis. Stat.
§ 971.08(2) remain viable for a future case because we do not
1
Nos. 2014AP678, 2014AP679, & 2014AP680.akz
decide that issue today. The present opinion of this court does
not resolve the question of how long is too long to wait to
bring a challenge based upon the failure of a court to give the
warning required under Wis. Stat. § 971.08(1)(c). Our opinion
certainly does not conclude that the amount of time that Valadez
waited to file her motion for plea withdrawal was reasonable or
that Valadez's claim was otherwise timely. The issue of
timeliness was not pursued in the case at issue; thus, it
remains undecided.
¶60 Despite the logic of Justice Prosser's dissent
regarding the time period within which a motion for plea
withdrawal based on Wis. Stat. § 971.08(2) should be filed, I do
not join the dissent because I would prefer to reach a
conclusion on that issue after meaningful briefing and argument.
Here, given the posture of the case and the State's concessions,
this was not done. See Swatek v. Cnty. of Dane, 192 Wis. 2d 47,
52 n.1, 531 N.W.2d 45 (1995) (citation omitted) ("[T]here are
real problems with addressing unmade claims and developing the
arguments for one side to a dispute."). Moreover, we often
benefit from the analysis of the courts below; there was no
analysis in this case of the issues raised by the dissent.
Therefore, I conclude that this court could benefit from these
issues being fully vetted on remand or in a future case.
¶61 Importantly, as stated, the court does not decide
today whether there are any time constraints on the assertion of
Wis. Stat. § 971.08(2) claims or whether Valadez timely raised
her claim. Indeed, I emphasize that I do not join the opinion
2
Nos. 2014AP678, 2014AP679, & 2014AP680.akz
of the court if it is read to resolve this issue.1 Justice
Prosser's dissent seemingly fears that the opinion of the court
could be construed as foreclosing the possibility of a time
limit on § 971.08(2) claims. See Dissent, ¶108. I write to
dispel that notion, as the court does not reach that conclusion.
¶62 On the contrary, the opinion of the court leaves the
issue alive and well. The opinion of the court is clear on this
point; although the opinion addressed the first question that
was certified to this court, it did not address the second. See
Majority op., ¶¶8-11 ("The appeal presents two
questions: . . . 2. Is there a time limit for a defendant to
file a motion to withdraw a plea based on Wis. Stat.
§ 971.08(2)? . . . We do not respond to the second question.").2
1
If the opinion of the court is read to resolve this issue,
then it is in fact only a lead opinion, since it would have
failed to garner a majority of votes.
2
Given the way the second certified question was framed to
this court by the court of appeals, the State's concessions may
be understandable. The discussion by the court of appeals of
time limits on Wis. Stat. § 971.08(2) claims was tethered to
specific language in State v. Romero-Georgana, 2014 WI 83, 360
Wis. 2d 522, 849 N.W.2d 668. See Valadez, Nos. 2014AP678,
2014AP679, 2014AP680, slip op., *5-6 (Wis. Ct. App. Jan. 21,
2015). The parties agree that the discussion at issue in
Romero-Georgana, which pertains to defendants who knowingly fail
to assert ripe § 971.08(2) claims while pursuing unrelated
postconviction claims, does not apply to Valadez's case. See
Romero-Georgana, 360 Wis. 2d 522, ¶67 n.14. The State conceded
that "Valadez did not pursue additional postconviction relief
beyond the motions underlying this consolidated appeal." Thus
the concerns raised by the dissent, while reasonable, were not
briefed or argued.
(continued)
3
Nos. 2014AP678, 2014AP679, & 2014AP680.akz
Moreover, while the question posed in the second certified
question could be interpreted in the manner in which Justice
Prosser interprets it, it could also be interpreted much more
narrowly. It is far from clear that the second issue, as raised
by Justice Prosser, is in fact before the court. What we know is
that the issues raised by Justice Prosser were not meaningfully
briefed, argued, or otherwise vetted.
¶63 In other words, then, the analysis in Justice
Prosser's dissent could become the law of the state, but I
conclude that it is more prudent to have the issue clearly
presented, fully briefed, and argued before reaching such a
conclusion. In fact, there may be other bases upon which claims
of those in Valadez's position are time-barred but that should
be determined only after meaningful briefing and argument.
¶64 I also concur to clarify that this case should not be
read as modifying our prior case law on deportation, including
It also bears mentioning that the court of appeals
formulated the second certified question largely in terms of the
interplay between potential time limits and the need to await
the institution of deportation proceedings. The court of
appeals asked, "If, in order to withdraw the plea, the defendant
must show that deportation proceedings are underway, how does
this standard fit in with the time limits for a motion to
withdraw the plea?" Valadez, slip op., *1-2 (emphases added).
Yet the court disposes of today's case based on Valadez's
ability to demonstrate the likelihood that she will be excluded
from admission to this country, not a likelihood that she will
be deported. Majority op., ¶9. Obviously, then, Valadez does
not need to wait for deportation proceedings to begin, which
renders the question quoted above irrelevant. This is yet
another reason not to attempt to decide the issue discussed by
the dissent without briefing and argument.
4
Nos. 2014AP678, 2014AP679, & 2014AP680.akz
State v. Shata, 2015 WI 74, 364 Wis. 2d 63, 868 N.W.2d 93,3 State
v. Ortiz-Mondragon, 2015 WI 73, 364 Wis. 2d 1, 866 N.W.2d 717,4
3
In Shata we concluded in part:
Shata is not entitled to withdraw his guilty plea
because he did not receive ineffective assistance of
counsel. Specifically, Shata's attorney did not
perform deficiently. Shata's attorney was required to
"give correct advice" to Shata about the possible
immigration consequences of his conviction. Shata's
attorney satisfied that requirement by correctly
advising Shata that his guilty plea carried a "strong
chance" of deportation. Shata's attorney was not
required to tell him that his guilty plea would
absolutely result in deportation. In fact, Shata's
deportation was not an absolute certainty. Executive
action, including the United States Department of
Homeland Security's exercise of prosecutorial
discretion, can block the deportation of deportable
aliens.
State v. Shata, 2015 WI 74, ¶79, 364 Wis. 2d 63, 868 N.W.2d 93(emphasis added) (citation omitted).
4
In Ortiz-Mondragon, we concluded in part:
Ortiz–Mondragon is not entitled to withdraw his no-
contest plea to substantial battery because he did not
receive ineffective assistance of counsel.
Specifically, his trial counsel did not perform
deficiently. Because federal immigration law is not
"succinct, clear, and explicit" in providing that
Ortiz–Mondragon's substantial battery constituted a
crime involving moral turpitude, his attorney
"need[ed] [to] do no more than advise [him] that
pending criminal charges may carry a risk of adverse
immigration consequences." Ortiz–Mondragon's trial
attorney satisfied that requirement by conveying the
information contained in the plea questionnaire and
waiver of rights form—namely, that Ortiz–Mondragon's
"plea could result in deportation, the exclusion of
admission to this country, or the denial of
naturalization under federal law." Counsel's advice
was correct, not deficient, and was consistent with
Wis. Stat. § 971.08(1)(c). In addition, Ortiz–
Mondragon's trial attorney did not perform deficiently
(continued)
5
Nos. 2014AP678, 2014AP679, & 2014AP680.akz
and State v. Negrete, 2012 WI 92, 343 Wis. 2d 1, 819 N.W.2d 749.
Fundamentally, this court's opinion, unlike the court's previous
opinions, is about the single adverse immigration consequence of
exclusion from admission to this country. Importantly, however,
this case again highlights the need for circuit courts to take
the time to properly administer the warning mandated by Wis.
Stat. § 971.08(1)(c).
¶65 In short, I join the opinion of the court and its
conclusion that Valadez has shown that her pleas are likely to
result in her exclusion from admission to this country. I would
remand for further proceedings, which may indeed result in
withdrawal of Valadez's guilty pleas or perhaps, could result in
a determination of how to proceed if the State has somehow
preserved the issues raised by Justice Prosser. If so, the
circuit court could be called upon to decide on remand whether
Valadez's motion to withdraw her guilty pleas is time-barred.
Regardless, the opinion of this court should not be viewed as
resolving the question of how long is too long to wait to bring
a challenge based upon the failure of a court to give the
warning required under Wis. Stat. § 971.08(1)(c). Similarly,
the opinion certainly does not conclude that the amount of time
that Valadez waited to file her motion for plea withdrawal was
reasonable, or that Valadez's claim was otherwise timely. I
by failing to further research the immigration
consequences of the plea agreement.
State v. Ortiz-Mondragon, 2015 WI 73, ¶70, 364 Wis. 2d 1, 866
N.W.2d 717 (emphasis added) (citation omitted).
6
Nos. 2014AP678, 2014AP679, & 2014AP680.akz
decline to join Justice Prosser's dissent, because I conclude
that this court could benefit from a thorough vetting of the
issue having had the issue fully briefed and argued. Finally,
today's opinion does not alter our deportation case law.
¶66 For the foregoing reasons, I respectfully concur in
part and dissent in part.
¶67 I am authorized to state that Justice MICHAEL J.
GABLEMAN joins this opinion.
7
No. 2014AP678, 2014AP679 & 2014AP680.dtp
¶68 DAVID T. PROSSER, J. (dissenting). In May 2004 the
defendant, Melisa Valadez, was charged with possession of
cocaine, possession of THC, and possession of drug
paraphernalia. She pled guilty to the first two misdemeanors;
the third was dismissed but read in. In June 2004 Ms. Valadez
was charged with possession of THC and possession of drug
paraphernalia. She pled guilty to the latter; the former charge
was dismissed and read in. In February 2005 she was charged
again with possession of THC, a second or subsequent offense,
which constituted a felony. She pled guilty on April 29, 2005.
¶69 In the plea colloquies for these offenses, the
Walworth County Circuit Court failed to provide Ms. Valadez with
the immigration warnings required by Wis. Stat. § 971.08(1)(c).
This fact is not in dispute.
¶70 Wisconsin Stat. § 971.08(1)(c) (2005-06) reads:
(1) Before the court accepts a plea of guilty or
no contest, it shall do all of the following:
. . . .
(c) Address the defendant personally and
advise the defendant as follows: "If you are not a
citizen of the United States of America, you are
advised that a plea of guilty or no contest for the
offense with which you are charged may result in
deportation, the exclusion from admission to this
country or the denial of naturalization, under federal
law."
¶71 Subsection (2) then reads:
(2) If a court fails to advise a defendant as
required by sub. (1)(c) and a defendant later shows
that the plea is likely to result in the defendant's
deportation, exclusion from admission to this country
or denial of naturalization, the court on the
defendant's motion shall vacate any applicable
1
No. 2014AP678, 2014AP679 & 2014AP680.dtp
judgment against the defendant and permit the
defendant to withdraw the plea and enter another plea.
This subsection does not limit the ability to withdraw
a plea of guilty or no contest on any other grounds.
Wis. Stat. § 971.08(2).
¶72 On October 3, 2013, Ms. Valadez moved to withdraw her
2004 and 2005 pleas. Her motion came approximately eight and
one-half years after she entered her plea in April 2005 to the
felony. Her motion was filed after she had completed her
sentence.
¶73 The lengthy delay between her 2005 sentence and her
2013 plea withdrawal motion inevitably raises the question posed
by the majority opinion: "Is there a time limit for a defendant
to file a motion to withdraw a plea based on Wis. Stat.
§ 971.08(2)?" The certification from the court of appeals was
more nuanced: "If, in order to withdraw the plea, the defendant
must show that deportation proceedings are underway, how does
this standard fit in with the time limits for a motion to
withdraw the plea?"
I
¶74 There are long-established principles governing plea
withdrawal. See State v. Cain, 2012 WI 68, ¶24, 342 Wis. 2d 1,
816 N.W.2d 177. Before sentencing, the circuit court should
freely allow withdrawal of a plea if the defendant supplies any
"fair and just reason" unless withdrawal would substantially
prejudice the prosecution. State v. Jenkins, 2007 WI 96, ¶2,
303 Wis. 2d 157, 736 N.W.2d 24. After sentencing, however, the
defendant must show that withdrawal is necessary to correct a
"manifest injustice." Cain, 342 Wis. 2d 1, ¶24.
2
No. 2014AP678, 2014AP679 & 2014AP680.dtp
¶75 Our court adopted the "manifest injustice" test in
State v. Reppin, 35 Wis. 2d 377, 386, 151 N.W.2d 9 (1967).
However, over the past half century, the court has shifted its
focus from the broad "manifest injustice" test to tailored rules
for particular fact situations that amount to a manifest
injustice.
¶76 A defective plea colloquy may constitute a manifest
injustice that warrants plea withdrawal either before or after a
defendant's sentence. The statutory basis for this rule is Wis.
Stat. § 971.08, but § 971.08 does not embody all Wisconsin law
on defective plea colloquies. There are many court decisions.
The key decisions addressing the constitutional importance of
plea colloquies in establishing knowing, intelligent, and
voluntary pleas are State v. Bangert, 131 Wis. 2d 246, 389
N.W.2d 12 (1986), and State v. Brown, 2006 WI 100, 293
Wis. 2d 594, 716 N.W.2d 906. Brown restated and supplemented
the Bangert plea colloquy by adding the text of Wis. Stat.
§ 971.08(1)(c) as well as additional court-mandated duties.
Brown, 293 Wis. 2d 594, ¶35.
¶77 The Brown court then explained the procedure on a plea
withdrawal motion:
After sentencing, in cases that involve an
alleged deficiency in the plea colloquy, an attempt to
withdraw a guilty plea proceeds as follows. The
defendant must file a postconviction motion under Wis.
Stat. § 809.30 or other appropriate statute. The
motion must (1) make a prima facie showing of a
violation of Wis. Stat. § 971.08(1) or other court-
mandated duties by pointing to passages or gaps in the
plea hearing transcript; and (2) allege that the
defendant did not know or understand the information
3
No. 2014AP678, 2014AP679 & 2014AP680.dtp
that should have been provided at the plea hearing.
Bangert, 131 Wis. 2d at 274.
When a Bangert motion is filed, it is reviewed by
the court. If the motion establishes a prima facie
violation of Wis. Stat. § 971.08 or other court-
mandated duties and makes the requisite allegations,
the court must hold a postconviction evidentiary
hearing at which the state is given an opportunity to
show by clear and convincing evidence that the
defendant's plea was knowing, intelligent, and
voluntary despite the identified inadequacy of the
plea colloquy. Bangert, 131 Wis. 2d at 274. When the
defendant has met his two burdens, the burden of
producing persuasive evidence at the evidentiary
hearing shifts to the state. Id. at 275. In meeting
its burden, the state may rely "on the totality of the
evidence, much of which will be found outside the plea
hearing record." Hampton, 274 Wis. 2d 379, ¶47. For
example, the state may present the testimony of the
defendant and defense counsel to establish the
defendant's understanding. Bangert, 131 Wis. 2d at
275. The state may also utilize the plea
questionnaire and waiver of rights form, documentary
evidence, recorded statements, and transcripts of
prior hearings to satisfy its burden.
If the state is able to meet its burden, the
hearing should be over. In a theoretical sense, the
burden will have shifted back to the defendant, but
there is nothing for the defendant to prove because
the defendant is not entitled to turn a Bangert
hearing into a fishing expedition on other issues that
were not pleaded in the defendant's original motion.
Id., ¶¶39-41 (footnotes omitted).
¶78 The Bangert case (1986) was important for numerous
reasons. One reason is especially pertinent to this discussion.
In State v. Cecchini, 124 Wis. 2d 200, 368 N.W.2d 830 (1985),
this court held unanimously that prior to acceptance of a plea,
a trial court "must ascertain that the defendant understands the
nature of the charge, and that this must be done on the record
at the plea hearing." Cecchini, 124 Wis. 2d at 201 (emphasis
4
No. 2014AP678, 2014AP679 & 2014AP680.dtp
added). The court then held: "Because the trial court failed to
do so . . . , the plea was involuntary and unknowing and in
violation of the defendant's right to due process." Id. As we
later explained in Brown, "[U]nder Cecchini, a deficient plea
colloquy was per se a violation of due process and required
withdrawal of the defendant's plea." Brown, 293 Wis. 2d 594,
¶26.
¶79 Bangert excised the language from Cecchini that
required such a result and created the Bangert hearing.
¶80 What is at stake in the interpretation of Wis. Stat.
§ 971.08(2) is that one reading of the statute produces an
absolute right to plea withdrawal, no matter when that right is
asserted, if the court failed to properly warn the defendant.
This reading would resurrect the Cecchini per se plea withdrawal
rule but only for persons subject to "deportation, exclusion
from admission to this country or denial of naturalization," not
ordinary citizens.
¶81 Wisconsin Stat. § 971.08(2) does not appear to
implicate any requirement for a Bangert-type hearing in which
the state is permitted to show by clear and convincing evidence
that the defendant's plea was knowing, intelligent, and
voluntary despite the court's failure to give the immigration
warning. Thus, an "alien" (non-citizen) defendant will always
appear to have a fair and just reason for plea withdrawal before
sentencing and will not need to establish a manifest injustice
for plea withdrawal after sentencing.
5
No. 2014AP678, 2014AP679 & 2014AP680.dtp
¶82 This strict interpretation of the statute does not
appear to be unfair to the government if it is cabined by a
reasonable time limit. However, if the statute is not cabined
by a reasonable time limit, it will not matter that an alien
defendant fully understood the risk of adverse immigration
consequences at the time of his plea. He will never have to
establish a manifest injustice for plea withdrawal. It will not
matter that an alien's untimely plea withdrawal will effectively
prevent retrial or otherwise substantially prejudice the
government. It will not matter that an alien will have
dramatically different plea-withdrawal rights from a citizen and
may be able to obtain opportunities, such as gun ownership, that
a citizen convicted of the same crime or crimes could not obtain
under the law.
¶83 If the statute is not cabined by a reasonable time
limit, the best thing that can happen to most alien defendants
is for a court to forget to give the statutory warning. In
these circumstances, it would border on malfeasance for a
defense attorney to interrupt a plea colloquy to ask for the
warning.
¶84 The bizarre consequences of a limitless right to plea
withdrawal for non-citizens who did not receive a proper
immigration warning from the court compels an inquiry whether
these results are what the legislature intended.
II
¶85 Wisconsin Stat. § (Rule) 809.30(1)(c) defines
"postconviction relief":
6
No. 2014AP678, 2014AP679 & 2014AP680.dtp
"Postconviction relief" means an appeal or a motion
for postconviction relief in a criminal case, other
than an appeal, motion, or petition under
ss. 302.113(7m) 302.113(9g), 973.19, 973.195, 974.06,
or 974.07(2). In a ch. 980 case, the term means an
appeal or a motion for postcommitment relief under
s. 980.038(4).
(Emphasis added.) Unsurprisingly, this definition does not
exclude a postconviction motion under Wis. Stat. § 974.02.
¶86 Wisconsin Stat. § 974.02 is entitled "Appeals and
postconviction relief in criminal cases." It reads in part:
(1) A motion for postconviction relief other
than under s. 974.06 or 974.07(2) by the defendant in
a criminal case shall be made in the time and manner
provided in s. 809.30. An appeal by the defendant in
a criminal case from a judgment of conviction or from
an order denying a postconviction motion or from both
shall be taken in the time and manner provided in
ss. 808.04(3) and 809.30. . . .
(Emphasis added.)
¶87 Wisconsin Stat. § (Rule) 809.30(2)(a) reads in part:
A person seeking postconviction relief in a criminal
case . . . shall comply with this section. Counsel
representing the person at sentencing or at the time
of the final adjudication shall continue
representation by filing a notice under par. (b) if
the person desires to pursue postconviction or
postdisposition relief unless counsel is discharged by
the person or allowed to withdraw by the circuit court
before the notice must be filed.
(Emphasis added.)
¶88 Wisconsin Stat. § (Rule) 809.30(2)(b) reads in part:
"Notice of intent to pursue postconviction or postdisposition
relief. Within 20 days after the date of sentencing or final
adjudication, the person shall file in circuit court and serve
on the prosecutor and any other party a notice of intent to
pursue postconviction or postdisposition relief."
7
No. 2014AP678, 2014AP679 & 2014AP680.dtp
¶89 Wisconsin Stat. § (Rule) 809.30 contains multiple
other statutory deadlines. Then, subsection (2)(h) provides,
"The person shall file in circuit court and serve on the
prosecutor and any other party a notice of appeal or motion
seeking postconviction . . . relief within 60 days after the
later of the service of the transcript or circuit court case
record." (Emphasis Added.)
¶90 The statutory section being interpreted——Wis. Stat.
§ 971.08(2)——clearly ties the right of plea withdrawal to a
motion from the defendant:
(2) If a court fails to advise a defendant as
required by sub. (1)(c) and a defendant later shows
that the plea is likely to result in the defendant's
deportation, exclusion from admission to this country
or denial of naturalization, the court on the
defendant's motion shall vacate any applicable
judgment against the defendant and permit the
defendant to withdraw the plea and enter another plea.
This subsection does not limit the ability to withdraw
a plea of guilty or no contest on any other grounds.
(Emphasis added.)
¶91 It is not evident from the text of the quoted statutes
why the right of plea withdrawal in Wis. Stat. § 971.08(2) is
not governed by the time limits in Wis. Stat. § (Rule) 809.30,
including a motion under Wis. Stat. § 974.06.
¶92 In State v. Romero-Georgana, 2014 WI 83, 360
Wis. 2d 522, 849 N.W.2d 668, the court discussed the fact that
the 1981-82 version of Wis. Stat. § 971.08(2) contained a time
limit that stated: "The court shall not permit the withdrawal of
a plea of guilty or no contest later than 120 days after
conviction." Wis. Stat. § 971.08(2) (1981-82). The 120-day
8
No. 2014AP678, 2014AP679 & 2014AP680.dtp
time limit was repealed in 1983 Wis. Act 219, § 43.1 A Judicial
Council note explained:
Section 971.08(2), stats., providing a 120-day time
limit for withdrawing a guilty plea or a plea of no
contest after conviction, is repealed as unnecessary.
Withdrawal of a guilty plea or a plea of no contest
may be sought by postconviction motion under
s. 809.30(1)(f), stats., or under s. 974.06, stats.
(Emphasis added.)
¶93 The court in Romero-Georgana observed that "[t]he
Judicial Council Note suggests that, in general, the proper
method for raising § 971.08 plea withdrawal claims after
conviction is through a motion under Wis. Stat. § (Rule) 809.30,
Wis. Stat. § 974.02, or Wis. Stat. § 974.06." Romero-Georgana,
360 Wis. 2d 522, ¶67 n.14.
¶94 We also observed:
When a defendant has notice that he is likely to be
deported and subsequently brings postconviction claims
unrelated to Wis. Stat. § 971.08(2), we think it would
be unwise to allow him to bring his claims as a
§971.08(2) motion at a later time, although he may be
able to bring his claims as a Wis. Stat. § 974.06motion if he has a sufficient reason for the delay.
Removing all time constraints on a Wis. Stat.
§ 971.08(2) motion would frustrate judicial efficiency
by encouraging defendants to delay bringing those
motions. In the absence of a time limit, if a
defendant were indifferent to deportation or wanted to
1
The legislature adopted the 120-day time limit in § 63,
ch. 255, Laws of 1969. The Judicial Council legislation reduced
"from one year to 120 days the time limit for withdrawing a
'guilty' plea." Laws of 1969 at 641. The one-year period had
been established in Pulaski v. State, 23 Wis. 2d 138, 126
N.W.2d 625 (1964). The Pulaski court had observed that
"normally for a trial court to entertain a motion made beyond a
year would seem to be an abuse of discretion." Id. at 144.
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be deported, the defendant would have incentive to
keep a § 971.08(2) motion in his back pocket while
pursuing relief on other grounds.
Id.
¶95 This brings us to Wis. Stat. § 974.06, which reads in
pertinent part:
(1) After the time for appeal or postconviction
remedy provided in s. 974.02 has expired, a prisoner
in custody under sentence of a court or a person
convicted and placed with a volunteers in probation
program under s. 973.11 claiming the right to be
released upon the ground that the sentence was imposed
in violation of the U.S. constitution or the
constitution or laws of this state, that the court was
without jurisdiction to impose such sentence, or that
the sentence was in excess of the maximum authorized
by law or is otherwise subject to collateral attack,
may move the court which imposed the sentence to
vacate, set aside or correct the sentence.
. . . .
(4) All grounds for relief available to a person
under this section must be raised in his or her
original, supplemental or amended motion. Any ground
finally adjudicated or not so raised, or knowingly,
voluntarily and intelligently waived in the proceeding
that resulted in the conviction or sentence or in any
other proceeding the person has taken to secure relief
may not be the basis for a subsequent motion, unless
the court finds a ground for relief asserted which for
sufficient reason was not asserted or was inadequately
raised in the original, supplemental or amended
motion.
¶96 There is no time limit for a motion under Wis. Stat.
§ 974.06. Moreover, this court has ruled that the "sufficient
reason" requirement in subsection (4) does not apply in cases in
which the defendant did not file a motion under Wis. Stat.
§ 974.02 or file an appeal. Romero-Georgana, 360 Wis. 2d 522,
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No. 2014AP678, 2014AP679 & 2014AP680.dtp
¶35 (citing State v. Lo, 2003 WI 107, ¶44 n.11, 264 Wis. 2d 1,
665 N.W.2d 756).
¶97 There are, however, other problems for plea withdrawal
under Wis. Stat. § 974.06.
¶98 First, a person who files a § 974.06 motion must be in
custody. Wis. Stat. § 974.06(1). Unlike Romero-Georgana, Ms.
Valadez is not a prisoner in custody. She is not in custody,
and her sentence has been served.
¶99 Second, it is doubtful that the court's failure to
give the immigration warnings under Wis. Stat. § 971.08(2) means
that Ms. Valadez's sentence was imposed in violation of the
United States or Wisconsin Constitutions. Ms. Valadez would
have to claim that her plea was not knowing, intelligent, and
voluntary and/or that she was prejudiced by the ineffective
assistance of counsel, and that her pleas should be withdrawn on
those constitutional grounds.
III
¶100 The impediment to the above-mentioned analysis has
long been the perceived unfairness of having a time limit
attached to a statute that requires a defendant to prove that
her conviction "is likely to result in . . . deportation." Wis.
Stat. § 971.08(2). In State v. Negrete, 2012 WI 92, 343
Wis. 2d 1, 819 N.W.2d 749, the court said:
[T]o satisfy Wis. Stat. § 971.08(2)'s "likelihood" of
immigration consequences requirement, a defendant may
allege that: (1) the defendant pleaded guilty or no
contest to a crime for which immigration consequences
are provided under federal law; and (2) because of his
plea, the federal government has manifested its intent
to institute one of the immigration consequences
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No. 2014AP678, 2014AP679 & 2014AP680.dtp
listed in § 971.08(2), as to the defendant. As
alternatives, a defendant may submit some written
notification that the defendant has received from a
federal agent that imports adverse immigration
consequence because of the plea that was entered; or,
a defendant may narrate verbal communications that the
defendant has had with a federal agent advising that
adverse immigration consequences were likely and that
such consequences were tied to the crime for which the
plea was entered.
Negrete, 343 Wis. 2d 1, ¶27 (emphasis added) (footnote omitted).
¶101 In the absence of some notice from federal
authorities, a defendant may have serious difficulty in proving
that he is "likely" to be deported under the Negrete test. This
is why the court of appeals asked: "If, in order to withdraw [a]
plea, the defendant must show that deportation proceedings are
underway, how does this standard fit in with the time limits for
a motion to withdraw the plea?"
¶102 The majority opinion supplies an answer by explaining
that Ms. Valadez, unlike many who seek to vacate guilty pleas
"by merely claiming they are 'likely' to be deportable, [claims]
that she is 'likely' to be excluded from admission." Majority
op., ¶32. She claims that even though she is a Lawful Permanent
Resident, "if she were to leave the United States and seek to
return, she would be excluded from admission as a result of her
convictions," citing 8 U.S.C. § 1182(a)(2)(A)(i)(II). Majority
op., ¶33.
¶103 The majority reasons as follows:
In contrast to deportation, a non-citizen would
have to take affirmative steps in order to induce the
federal government to exclude the non-citizen from
admission to the United States. The federal
government does not seek out individuals who may be
excluded from admission or otherwise inform non-
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No. 2014AP678, 2014AP679 & 2014AP680.dtp
citizens that they may be excluded from admission to
this country based on convictions for violating laws
relating to controlled substances.
Instead, the federal government, through the
statutes governing admission to this country, excludes
only non-citizens with convictions for violating laws
relating to controlled substances who affirmatively
seek admission to the country. Short of Ms. Valadez
taking the affirmative step of leaving the United
States and actually being excluded from admission, Ms.
Valadez has no way aside from the immigration and
naturalization statutes to demonstrate that she is
"likely" to be excluded from admission.
Ms. Valadez's convictions are, as stated
previously, explicitly listed in federal statutes as
grounds for exclusion from admission. Based on the
federal statutes, if Ms. Valadez leaves the United
States and attempts to gain readmission to this
country, the federal government will "likely" exclude
her from admission because of her convictions.
Majority op., ¶¶42-44.
¶104 The majority concludes that Wis. Stat. § 971.08(2)
does not require a showing that the federal government has taken
steps to exclude Ms. Valadez from admission. "The statute
requires only that a defendant show that such a consequence is
'likely.'" Majority op., ¶45. "In sum, Ms. Valadez has
fulfilled the statutory requirements for withdrawing her pleas."
Id., ¶53.
¶105 Under the majority's analysis, "any alien" who is
"convicted of, or admits having committed, or who admits
committing acts which constitute the essential elements
of . . . a violation of (or conspiracy or attempt to violate)
any laws or regulations . . . relating to a controlled
substance," 8 U.S.C. § 1182(a)(2)(A)(i)(II), is immediately upon
conviction able to establish grounds for plea withdrawal.
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Consequently, these alien drug offenders do not need time for
the government to act against them; they can satisfy the second
ground for plea withdrawal immediately upon conviction, and a
time limit on plea withdrawal will not disadvantage them.
¶106 The same statute relied upon by the majority applies
to persons convicted of "a crime involving moral turpitude." 8
U.S.C. § 1182(a)(2)(A)(i)(I). It applies to any alien
"convicted of 2 or more offenses (other than purely political
offenses), regardless of whether . . . the offenses involved
moral turpitude, for which the aggregate sentences to
confinement were 5 years of more." 8 U.S.C. § 1182(a)(2)(B).
It applies to many more.
¶107 In short, almost "any alien" defendant who seeks plea
withdrawal on grounds that he did not receive the warnings under
Wis. Stat. § 971.08(1)(c) will be able to make his case under a
Wis. Stat. § 974.02 motion without raising the prospect of
deportation.
¶108 The argument that fair play demands that an alien's
right under Wis. Stat. § 971.08(2) have no time limit is
unpersuasive. Permitting non-citizens to withdraw their pleas
to serious crimes whenever they want to and regardless of the
circumstances simply because they did not receive the statutory
warning is too incongruous and unreasonable to be accepted.
¶109 For the foregoing reasons, I respectfully dissent.
¶110 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this dissent.
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