State v. Jose Alberto Reyes Fuerte , 378 Wis. 2d 504 ( 2017 )

2017 WI 104
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2041-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Jose Alberto Reyes Fuerte,
Defendant-Appellant.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 372 Wis. 2d 106, 887 N.W.2d 121
PDC No: 2016 WI App 78 - Published
OPINION FILED: December 19, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 5, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Columbia
JUDGE: Alan J. White
JUSTICES:
CONCURRED:
DISSENTED: ABRAHAMSON, J. dissents, joined by A.W. BRADLEY,
J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Nancy A. Noet, assistant attorney general, and Brad D.
Schimel, attorney general. There was an oral argument by Lisa
E.F. Kumfer, assistant attorney general.
For the defendant-appellant there was a brief filed by Ben
M. Crouse and Sesini Law Group, S.C., Milwaukee. There was an
oral argument by Ben M. Crouse.
2017 WI 104
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP2041-CR
(L.C. No. 2012CF582)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. DEC 19, 2017
Jose Alberto Reyes Fuerte, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 MICHAEL J. GABLEMAN, J. This is a review of a
published decision of the court of appeals that reversed the
Columbia County Circuit Court's1 order denying Jose Alberto Reyes
Fuerte's ("Reyes Fuerte") motion to withdraw two guilty pleas
for two separate criminal violations. The motions for
withdrawal were made pursuant to Wis. Stat. § 971.08(2) (2013-
14).2 State v. Reyes Fuerte, 2016 WI App 78, 372 Wis. 2d 106,
887 N.W.2d 121.
1
The Honorable Alan J. White presided.
2
All subsequent references to the Wisconsin Statutes are to
the 2013-14 version unless otherwise indicated.
No. 2015AP2041-CR
¶2 The State argues that motions to withdraw a guilty
plea pursuant to Wis. Stat. § 971.08(2) should be subject to
harmless error analysis pursuant to Wis. Stat. §§ 971.26 and
805.18, and thus this court should overrule its decision in
State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1.
The State asks this court to remand this matter to the circuit
court for a Bangert3 hearing in order to determine whether Reyes
Fuerte knew of the potential immigration consequences of his
plea at the time of the plea hearing.
¶3 We hold that Douangmala was objectively wrong because
it failed to properly consider the harmless error statutes, Wis.
Stat. §§ 971.26 and 805.18, and is thus overruled. Applying
harmless error analysis, we further hold that the circuit
court's error in this case was harmless as a matter of law and
thus reverse the decision of the court of appeals.
¶4 We begin with a description of the facts and
procedural history. We then set forth the standard of review.
We begin our analysis by setting forth the decisions of this
court and the court of appeals considering the applicability of
Wis. Stat. §§ 971.26 and 805.18 to Wis. Stat. § 971.08(2). We
follow with our conclusion that Douangmala was wrongly decided
because harmless error analysis does apply to § 971.08(2).
Finally, we conclude that the circuit court's error in this case
was harmless.
3
State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986).
2
No. 2015AP2041-CR
I. FACTUAL AND PROCEDURAL BACKGROUND
¶5 Reyes Fuerte entered guilty pleas on February 20,
2014, to two charges: (1) attempting to flee or elude a traffic
officer, contrary to Wis. Stat. § 346.04(3), and (2) second-
offense operating with a restricted controlled substance in his
blood, contrary to Wis. Stat. §§ 346.63(1)(am) and
346.65(2)(am)2. At the plea hearing, the circuit court gave the
following advisement regarding the potential immigration
consequences of Reyes Fuerte's plea:
Usually we're looking at felonies, but any conviction
to a person who is not a resident of the United States
could lead, at some point in the future, to that
person either being denied re-entry or that person
being required to leave this country. And I'm not
saying that's going to happen at all. I'm just saying
that convictions can lead to those results.
Reyes Fuerte confirmed, through an interpreter, that he
understood the circuit court's advisement. Reyes Fuerte was
also alerted to the potential immigration consequences of his
plea in the Plea Questionnaire/Waiver of Rights form, which was
in English and Spanish. Further, defense counsel was bilingual,
and stated on the record that he also went over the form in
Spanish with Reyes Fuerte.
¶6 At all times relevant to this case, Reyes Fuerte was
in the United States illegally and spoke Spanish as his first
language. At the time of his plea, Reyes Fuerte was in the
3
No. 2015AP2041-CR
midst of deportation4 proceedings. He asserted cancellation of
removal as a defense in those proceedings. Cancellation of
removal allows the United States Attorney General to cancel
removal and grant lawful permanent residence to aliens
fulfilling certain criteria. 8 U.S.C. § 1229b(b)(1). One of
those criteria is that the alien has not been convicted of a
crime of moral turpitude. 8 U.S.C. § 1229b(b)(1)(C) (citing 8
U.S.C. § 1227(a)(2)(A)(i)). At the time of Reyes Fuerte's plea,
whether either or both of his convictions were for crimes of
moral turpitude was unclear.
¶7 The United States Court of Appeals for the Seventh
Circuit resolved any ambiguities late in 2014. Cano-Oyarzabal
v. Holder, 774 F.3d 914, 919 (7th Cir. 2014). In Cano-
Oyarzabal, the court affirmed a determination by the Board of
Immigration Appeals that Wis. Stat. § 346.04(3), attempting to
flee or elude a traffic officer, is a crime of moral turpitude.
Id. Thus, Reyes Fuerte was no longer eligible for the
cancellation of removal defense.
¶8 Reyes Fuerte moved to withdraw his plea pursuant to
Wis. Stat. § 971.08(2) in June 2015, alleging that the circuit
court's immigration consequences advisement was defective and
Reyes Fuerte's guilty plea resulted in losing the cancellation
of removal defense. The circuit court denied the motion because
4
Federal immigration law uses the term "removal" to
describe the process traditionally known as "deportation." We
use those terms interchangeably in this opinion.
4
No. 2015AP2041-CR
it found the immigration consequences advisement substantially
complied with the statute under State v. Mursal, 2013 WI App
125, 351 Wis. 2d 180, 839 N.W.2d 173. Reyes Fuerte appealed.
¶9 The court of appeals reversed, holding that the
circuit court's immigration consequences advisement did not
substantially comply with Wis. Stat. § 971.08(1)(c). Reyes
Fuerte, 372 Wis. 2d 106, ¶23. The court of appeals identified
two substantial deviations from the language of the statute.
Id., ¶17. First, the circuit court used the term "resident"
rather than "citizen." Id., ¶18. This difference was
substantial to the court of appeals because each term has a
separate and distinct meaning under federal immigration law.
Id. United States citizens do not face any immigration or
citizenship consequences for their crimes. Id. Conversely,
residents of the United States who are not citizens, even those
in the country legally, may suffer adverse immigration
consequences. Id., ¶19.
¶10 Second, the circuit court made no mention of "denial
of naturalization," one of the three warnings required by Wis.
Stat. § 971.08(1)(c). Id., ¶22. Though Reyes Fuerte was not
concerned with denial of naturalization at the moment—
naturalization would be possible only if Reyes Fuerte was not
deported and was granted legal status at some point—the court of
appeals rejected the State's argument that the omission of this
warning was irrelevant because such a finding would constitute
harmless error analysis, which this court prohibited in State v.
5
No. 2015AP2041-CR
Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1. Id.,
¶23.
¶11 Next, the court of appeals held that, under the second
prong of Wis. Stat. § 971.08(2), Reyes Fuerte had successfully
alleged that his plea was "likely" to result in deportation
because the cancellation of removal defense was no longer
available. Id., ¶41. The court of appeals then remanded to the
circuit court for a hearing to determine whether Reyes Fuerte
would have fulfilled the requirements for the cancellation of
removal defense except for his guilty plea in this case. Id.,
¶42.
¶12 The State petitioned this court for review, which we
granted on January 18, 2017.
II. STANDARD OF REVIEW
¶13 This court reviews motions to withdraw guilty pleas
after sentencing in one of two ways, known as the Bentley
standard and the Bangert standard. State v. Negrete, 2012 WI
92, ¶¶16, 19, 343 Wis. 2d 1, 819 N.W.2d 749.
¶14 Under the Bentley standard, the reviewing court first
determines whether the motion "alleges sufficient material facts
that, if true, would entitle the defendant to relief." Id., ¶17
(citing State v. Allen, 2004 WI 106, ¶9, 274 Wis. 2d 568, 682
N.W.2d 433). See also State v. Bentley, 201 Wis. 2d 303, 309-
10, 548 N.W.2d 50 (1996). If sufficient facts are alleged, the
court then looks to the record to determine whether an
evidentiary hearing is required. Negrete, 343 Wis. 2d 1, ¶17
n.6. An evidentiary hearing is required if the record is
6
No. 2015AP2041-CR
insufficient to determine whether the defendant is entitled to
relief. Id. Conversely, no hearing is required if the record
"conclusively demonstrates" that the defendant is not entitled
to relief, even if the motion alleges sufficient facts. Id.,
¶17. These determinations are questions of law reviewed de
novo. Id.
¶15 If the motion does not allege sufficient facts that,
if true, would entitle the defendant to relief, then the
decision to grant an evidentiary hearing is discretionary. Id.,
¶18. As such, this court reviews the decision for an erroneous
exercise of discretion. Id.
¶16 Under the Bangert standard, defendants may shift the
burden of proof to the State when: "(1) the defendant can point
to a plea colloquy deficiency evident in the plea colloquy
transcript, and (2) the defendant alleges that he did not know
or understand the information that should have been provided in
the colloquy." Id., ¶19 (citing State v. Bangert, 131
Wis. 2d 246, 274-75, 389 N.W.2d 12 (1986)). This court applies
de novo review to both elements: whether the colloquy is
sufficient and whether an evidentiary hearing is required. Id.
¶17 We apply the Bangert standard in this case because
Reyes Feurte can point to a defect in the plea colloquy
transcript and Reyes Fuerte has alleged that he was unaware of
the immigration consequences of his plea. Therefore, we review
the sufficiency of the colloquy and the necessity of an
evidentiary hearing de novo. Id.
7
No. 2015AP2041-CR
¶18 This case also requires us to interpret Wis. Stat.
§§ 971.08, 971.26, and 805.18. Statutory interpretation is an
issue of law we review de novo. State v. Ozuna, 2017 WI 64, ¶9,
376 Wis. 2d 1, 898 N.W.2d 20. However, when a party asks this
court to overrule one of its prior decisions interpreting a
statute, as the State asks us to do in this case, we do not
interpret the statute de novo. Progressive N. Ins. Co. v.
Romanshek, 2005 WI 67, ¶46, 281 Wis. 2d 300, 697 N.W.2d 417.
Rather, the party seeking we overturn a prior statutory
interpretation must show that the prior interpretation was
"objectively wrong" and thus the court has a "compelling reason
to overrule it." Id., ¶45 (quoting Wenke v. Gehl Co., 2004 WI
103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405).
III. DISCUSSION
¶19 Before we begin our analysis, we take a moment to
remind circuit court judges that simply reading the language of
the advisement from Wis. Stat. § 971.08(1)(c) is by far the best
option. The use of quotation marks (such as those in
§ 971.08(1)(c)) is "an unusual and significant legislative
signal" that should be given effect by circuit courts. State v.
Garcia, 2000 WI App 81, ¶16, 234 Wis. 2d 304, 610 N.W.2d 180.
In this instance, those quotation marks are best given effect by
reading the advisement as written in the statute. See id.
Though, as a result of this opinion, harmless error now applies
as a "safety net" for circuit courts, the best practice remains
reading the exact language of the statute. Id.
8
No. 2015AP2041-CR
¶20 Our analysis first discusses the three statutes at
issue and how Wisconsin courts previously construed them. We
next discuss why Douangmala was wrongly decided and why we
overrule it. Finally, we apply the harmless error analysis to
this case and hold that the circuit court's errors were
harmless.
A. Statutory Background
¶21 This case requires us to consider the interplay of
three statutes: Wis. Stat. §§ 971.08, 971.26, and 805.18.
Section 971.08(1)(c) requires a circuit court to, before
accepting a plea of guilty or no contest:
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."
Wis. Stat. § 971.08(1)(c). The next subsection then provides a
remedy if the circuit court fails to give the required
advisement:
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.
Wis. Stat. § 971.08(2). This court has construed § 971.08(2) to
require defendants prove two elements in order to withdraw their
9
No. 2015AP2041-CR
pleas: (1) the circuit court failed to give the immigration
advisement to the defendant as required by § 971.08(1)(c), and
(2) the plea is "likely" to result in deportation, exclusion
from admission, or denial of naturalization. State v. Valadez,
2016 WI 4, ¶28, 366 Wis. 2d 332, 874 N.W.2d 514.
¶22 Wisconsin Stat. §§ 971.26 and 805.18 serve as savings
clauses for judgments affected by harmless errors. Section
971.26 applies exclusively to criminal actions:
No indictment, information, complaint or warrant shall
be invalid, nor shall the trial, judgment or other
proceedings be affected by reason of any defect or
imperfection in matters of form which do not prejudice
the defendant.
Wis. Stat. § 971.26. Section 805.18 is part of the civil
procedure code, but is made applicable to criminal actions by
Wis. Stat. § 972.11(1), and states:
(1) The court shall, in every stage of an action,
disregard any error or defect in the pleadings or
proceedings which shall not affect the substantial
rights of the adverse party.
(2) No judgment shall be reversed or set aside or new
trial granted in any action or proceeding on the
ground of selection or misdirection of the jury, or
the improper admission of evidence, or for error as to
any matter of pleading or procedure, unless in the
opinion of the court to which the application is made,
after an examination of the entire action or
proceeding, it shall appear that the error complained
of has affected the substantial rights of the party
seeking to reverse or set aside the judgment, or to
secure a new trial.
Wis. Stat. § 805.18.
¶23 Prior to this court's decision in Douangmala,
Wisconsin courts applied harmless error analysis to motions to
10
No. 2015AP2041-CR
withdraw pleas pursuant to Wis. Stat. § 971.08(2). E.g., State
v. Chavez, 175 Wis. 2d 366, 371, 498 N.W.2d 887 (Ct. App. 1993).
See also Douangmala, 253 Wis. 2d 173, ¶¶33-40 (discussing Chavez
and its progeny). The Chavez court noted that the intersection
of Wis. Stat. §§ 971.08(2) and 971.265 created an ambiguity
because both statutes use mandatory language with seemingly
contradictory commands. Chavez, 175 Wis. 2d at 370-71. The
court of appeals then utilized legislative history6 to hold that
the legislature intended to protect only "an alien [who]
unwittingly pleads guilty or no contest . . . without being
5
Chavez did not consider Wis. Stat. § 805.18. State v.
Chavez, 175 Wis. 2d 366, 370-71, 498 N.W.2d 887 (Ct. App. 1993).
6
This legislative history consists of an article attached
to the drafting request by Senator John Norquist that stated
statutes like section 971.08 help "alleviate the hardship and
unfairness involved when an alien unwittingly pleads guilty or
nolo contendere to a charge without being informed of the
immigration consequences of such a plea." (Emphasis added)
This language never made it into the Legislative Reference
Bureau analysis that was ultimately distributed with the draft
bill to the entire legislature.
The State uses the same legislative history in its argument
in the present matter, but we do not need the legislative
history because we are tasked with giving effect to what the
legislature enacted, not necessarily what it intended. State ex
rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶44, 271
Wis. 2d 633, 681 N.W.2d 110. Nonetheless, we are inclined to
agree with the Chavez court that "the legislature did not intend
a windfall to a defendant who was aware of the deportation
consequences of his plea," 175 Wis. 2d at 371, though we
emphasize that we resolve this case based solely on the plain
meaning of all statutes involved.
11
No. 2015AP2041-CR
informed of the consequences of such a plea." Id. at 371.
Thus, harmless error could apply where the defendant otherwise
knew (i.e., was not "unwitting") about the consequences of the
plea. Id.
¶24 This court rejected Chavez's conclusion in Douangmala,
instead holding that the legislative history merely indicated
that the legislature said what it intended to: if all
conditions of Wis. Stat. § 971.08(2) are met, then the court
must vacate the judgment. Douangmala, 253 Wis. 2d 173, ¶31.
The Douangmala court found it highly relevant that the mention
of aliens who unwittingly enter a guilty or no-contest plea was
contained solely in the drafting file, which not all legislators
see. Id., ¶¶28-29.
¶25 Further, the court noted that Wis. Stat. § 971.08(2)
uses mandatory "shall" language. Id., ¶31. Thus, the court
held that harmless error does not apply because the
legislature's use of mandatory language in effect precluded
harmless error analysis. Id., ¶42.
B. Douangmala failed to harmonize the interplay between Wis.
Stat. §§ 971.08, 971.26, and 805.18.
¶26 This court set out the basic method for statutory
interpretation in State ex rel. Kalal v. Circuit Court for Dane
Cty., 2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110. See also
Daniel R. Suhr, Interpreting Wisconsin Statutes, 100 Marq. L.
Rev. 969, 970 (2017). Where the meaning of a statute is plain
based on the language of the statute, analysis ends there.
Kalal, 271 Wis. 2d 633, ¶45. As part of our plain language
12
No. 2015AP2041-CR
analysis, we must consider the statute's context as well. Id.,
¶46. This means we read "statutory language . . . not in
isolation, but as part of a whole; in relation to the language
of surrounding or closely-related statutes . . . ." Id.
Accordingly, analyzing Wis. Stat. § 971.08(2) in a vacuum is
improper, and we must view it in light of its related statutes.
In this instance, that means we must read § 971.08(2) in light
of the statutory savings clauses in Wis. Stat. §§ 971.26 and
805.18.
¶27 Though many decisions parrot Kalal's language that
statutes are to be interpreted "in relation to the language of
surrounding or closely-related statutes," id., few provide any
definition of "closely-related." Statutes are closely related
when they are in the same chapter, reference one another, or use
similar terms. City of Janesville v. CC Midwest, Inc., 2007 WI
93, ¶24, 302 Wis. 2d 599, 734 N.W.2d 428 (interpreting
"comparable replacement property" in Wis. Stat. § 32.05(8)(b)-
(c) in light of Wis. Stat. § 32.19). Being within the same
statutory scheme may also make two statutes closely related.
State v. Scruggs, 2017 WI 15, ¶24, 373 Wis. 2d 312, 891
N.W.2d 786 (considering a statute's presence in criminal
sentencing statutes as part of its context, but ultimately
concluding that other context took precedence in that case); cf
Homeward Bound Servs. v. Office of the Ins. Comm'r, 2006 WI App
208, ¶34, 296 Wis. 2d 481, 724 N.W.2d 380 (considering Wis.
Stat. chs. 600-655 closely related because they are a
13
No. 2015AP2041-CR
comprehensive statutory scheme intended to "ensure that policy
holders are treated fairly.").
¶28 We conclude that Wis. Stat. §§ 971.08, 971.26, and
805.18 are closely related, and thus must be construed together,
because they all appear in the same statutory scheme. See id.
Sections 971.08 and 971.26 are in the same chapter, which
strongly indicates they are related and should be construed
together. CC Midwest, 302 Wis. 2d 599, ¶24. Additionally,
though § 805.18 is not in the same chapter, Wis. Stat.
§ 972.11(1) incorporates § 805.18 for use in criminal cases, and
§ 972.11 is part of the criminal code. Chapters 971 and 972
both deal with criminal procedure; chapter 971 generally governs
pre-trial procedures while chapter 972 governs trial procedure.
Thus, chapters 971 and 972 are related as part of the same
statutory scheme. See Homeward Bound Servs., 296 Wis. 2d 481,
¶34. Finally, this court acknowledged post-Douangmala that
reading § 971.08(2) in light of § 971.26 is "reasonable." State
v. Lagundoye, 2004 WI 4, ¶26 n.17, 268 Wis. 2d 77, 674
N.W.2d 526 (stating "[b]oth statutes concern when a defendant
may be relieved of a judgment based on a defect in the
proceedings" in deciding whether Douangmala had retroactive
effect).
¶29 Where multiple statutes are at issue, this court seeks
to harmonize them through a reasonable construction that gives
effect to all provisions. State v. Delaney, 2003 WI 9, ¶13, 259
Wis. 2d 77, 658 N.W.2d 416. Where conflict between statutes is
unavoidable, specific statutes take precedence over general
14
No. 2015AP2041-CR
statutes. Rouse v. Theda Clark Med. Ctr., 2007 WI 87, ¶37, 302
Wis. 2d 358, 735 N.W.2d 30.
¶30 We hold that the State has met its high burden of
showing that this court's decision in Douangmala was
"objectively wrong." See Romanshek, 281 Wis. 2d 300, ¶45.
Douangmala made no attempt to harmonize Wis. Stat. §§ 971.08(2)
and 971.26. See Douangmala, 253 Wis. 2d 173, ¶¶32-33. While
the decision makes mention of § 971.26, it did not analyze how
it applied in that case. Id., ¶42. Rather, Douangmala
overruled Chavez and its progeny based on Chavez's reliance on
the legislative history that the court found unpersuasive and
the use of the mandatory "shall" in § 971.08(2) rather than
independently analyzing the interplay between the statutes. Id.7
7
Navigating the reasoning in Douangmala is a challenge in
and of itself. The court first held that the use of "shall"
indicated an intent that withdrawal be mandatory, contrary to
the legislative history proffered by the State:
The legislative history therefore persuades us that
the legislature intended what the statute explicitly
states. Section 971.08(2) states that if the
conditions set forth therein are met (and they were in
the present case), the circuit court "shall" vacate
the judgment and shall permit the defendant to
withdraw the plea. The word "shall" in a statute is
presumed to be mandatory unless a different
construction is necessary to carry out the
legislature's clear intent. Nothing in Wis. Stat.
§ 971.08 points to a different interpretation of the
word "shall" than an interpretation that the word
signifies a mandatory act.
State v. Douangmala, 2002 WI 62, ¶31, 253 Wis. 2d 173, 646
N.W.2d 1 (footnotes omitted).
(continued)
15
No. 2015AP2041-CR
¶31 Douangmala's analysis suffers a fatal flaw in this
regard: both of the harmless error savings statutes also use
the mandatory "shall" language. Wis. Stat. § 971.26 ("[N]or
shall the . . . judgment . . . be affected by reason of any
defect or imperfection in matters of form which do not prejudice
the defendant.") (emphasis added); Wis. Stat. § 805.18 ("(1) The
court shall, in every stage of action, disregard any error or
defect in the pleadings or proceedings which shall not affect
The court then mentions Wis. Stat. § 971.26, but
proceeds to discuss Chavez and its progeny. Douangmala,
253 Wis. 2d 173, ¶32-40. The analysis section concludes
with the court overruling Chavez, 175 Wis. 2d 366, State v.
Issa, 186 Wis. 2d 199, 519 N.W.2d 741 (Ct. App. 1994),
State v. Lopez, 196 Wis. 2d 725, 539 N.W.2d 700 (Ct. App.
1995), and State v. Garcia, 2000 WI App 81, 234
Wis. 2d 304, 610 N.W.2d 180:
The principle of stare decisis is applicable to the
decisions of the court of appeals. Stare decisis
requires us to abide by precedent established by the
court of appeals unless a compelling reason exists to
overrule the precedent. The principle of stare
decisis does not, however, require us to adhere to
interpretations of statutes that are objectively
wrong. That the legislature has not taken action with
respect to a statute that a court has construed is
entitled to some weight in determining legislative
intent, but it is not conclusive. As we have
explained, we conclude that the Chavez harmless-error
interpretation of Wis. Stat. § 971.08(2) is
objectively wrong under the language of the statute.
Accordingly, we overrule Chavez, Issa, Lopez, and
Garcia to the extent that these cases hold that
harmless-error principles apply to a defendant who
satisfies the conditions set forth in § 971.08(2).
Douangmala, 253 Wis. 2d 173, ¶42 (footnotes omitted).
Nowhere does the court analyze Wis. Stat. § 971.26 outside
of the context of Chavez.
16
No. 2015AP2041-CR
the substantial rights of the adverse party. (2) No judgment
shall be reversed or set aside . . . unless in the opinion of
the court to which the application is made . . . the error
complained of has affected the substantial rights of the party
seeking to reverse . . . .") (emphasis added). We agree with
Douangmala that "[t]he word 'shall' in a statute is presumed to
be mandatory" and "[n]othing in Wis. Stat. § 971.08 points to
a[n] . . . interpretation [other] than that the word signifies a
mandatory act." Douangmala, 253 Wis. 2d 173, ¶31. More
particularly, we agree this analysis is true as far as it goes;
however, this analysis is incomplete in that it ignores the
presence of "shall" in Wis. Stat. §§ 971.26 and 805.18.
¶32 We hold that Wis. Stat. §§ 971.08(2), 971.26, and
805.18 are most comprehensibly harmonized by applying harmless
error analysis. All of the relevant statutes use "shall," and,
accordingly, none is "more mandatory" than any other. We
emphasize that applying harmless error analysis does not
facially violate § 971.08(2), but failing to apply harmless
error analysis does facially violate §§ 971.26 and 805.18.
¶33 Further, harmless error was plainly codified in the
two statutes ignored by Douangmala that we harmonize today, long
before Wis. Stat. § 971.08(2) was enacted into law. Wisconsin
Stat. § 971.26 was enacted in its current form in 1969, though
the concept goes back much further. See § 63, ch. 255, Laws of
1969; Flynn v. State, 97 Wis. 44, 47, 72 N.W. 373 (1897)
(referencing "harmless error"). When Wisconsin Stat.
§ 971.08(2) was created in 1986, the legislature was well aware
17
No. 2015AP2041-CR
of the concept of harmless error in criminal proceedings. 1985
Wis. Act 252, §§ 3-4; see Villa Clement, Inc. v. National Union
Fire Ins. Co., 120 Wis. 2d 140, 147, 353 N.W.2d 369 (Ct. App.
1984) (presuming the legislature is aware of pre-existing
statutes).
¶34 Our holding is consistent with how federal courts
review imperfect immigration advisements in plea colloquies.8
Before 2013, federal courts were not required to give any sort
of immigration advisement. See United States v. Matamula, 788
F.3d 166, 174 (5th Cir. 2015). The Federal Rules of Criminal
Procedure were amended, effective December 1, 2013, to require
federal courts to give an immigration advisement substantially
identical to that of Wis. Stat. § 971.08(1)(c) before accepting
a guilty or no contest plea.9 Id.; Fed. R. Crim. P. 11(b)(1)(O).
8
"Federal cases are persuasive guides to the construction
of state law when state and federal provisions are
similar . . . ." State v. Brady, 118 Wis. 2d 154, 157 n.1, 345
N.W.2d 533 (Ct. App. 1984). Cf State v. Cardenas-Hernandez, 219
Wis. 2d 516, 527-28, 579 N.W.2d 678 (1998) ("Wisconsin courts
look to federal cases interpreting and applying the federal
rules of evidence as persuasive authority" where federal rules
of evidence and Wisconsin rules of evidence are similar.).
9
The federal immigration advisement provides the same
substantive warnings as Wis. Stat. § 971.08(1)(c) with minor
linguistic differences:
Before the court accepts a plea of guilty or nolo
contendre . . . the court must address the defendant
personally in open court . . . that, if convicted, a
defendant who is not a United States Citizen may be
removed from the United States, denied citizenship,
and denied admission to the United States in the
future.
(continued)
18
No. 2015AP2041-CR
¶35 Imperfect plea colloquies in federal courts are
subject to harmless error analysis. Fed. R. Crim. P. 11(h) ("A
variance from the requirements of this rule is harmless error if
it does not affect substantial rights."). Federal courts
consider an imperfect immigration advisement harmless error
where the defendant otherwise knew of potential immigration
consequences. United States v. Anderson, 624 F. App'x 106, 107
(4th Cir. 2015) (per curiam)10 ("[W]e conclude that any such
error is harmless because Anderson had actual notice of these
possible immigration consequences . . . ."). This reasoning is
entirely consistent with pre-Douangmala court of appeals
decisions applying harmless error to Wis. Stat. § 971.08(2),
e.g., State v. Lopez, 196 Wis. 2d 725, 731, 539 N.W.2d 700, and
our holding today.
¶36 In light of the foregoing, we hold that Douangmala was
objectively wrong because it failed to consider the mandatory
language in Wis. Stat. §§ 971.26 and 805.18 and thus overrule
it. Additionally, we reinstate Chavez,11 Issa,12 Lopez,13 and
Fed. R. Crim. P. 11(b)(1)(O).
10
No published federal court decisions apply harmless error
under rule 11(h) to plea colloquies that imperfectly state the
immigration advisement required by rule 11(b)(1)(O) due to the
short time rule 11(b)(1)(O) has been in existence. We are thus
left with only unpublished decisions, of which United States v.
Anderson is the most analogous to Reyes Fuerte's situation, 624
F. App'x 106 (4th Cir. 2015) (per curiam). Anderson is citable
in federal courts. Fed. R. App. P. 32.1(a) (allowing citation
to unpublished decisions issued on or after January 1, 2007).
11
State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct.
App. 1993).
19
No. 2015AP2041-CR
Garcia14 as valid law and binding precedent. See Steele v.
State, 97 Wis. 2d 72, 85, 294 N.W.2d 2 (1978) (reinstating cases
overruled by the case Steele overruled).15
C. The circuit court's errors were harmless.
¶37 The circuit court made two errors in its immigration
advisement: (1) completely omitting any mention of denial of
naturalization and (2) using the term "resident" instead of
"citizen." We hold both errors were harmless.
¶38 We identify three reasons these errors were harmless.
First, defense counsel testified at the plea withdrawal hearing
that he went over the Plea Questionnaire/Waiver of Rights form
in Spanish with Reyes Fuerte. The form contains language
12
State v. Issa, 186 Wis. 2d 199, 519 N.W.2d 741 (Ct. App.
1994).
13
State v. Lopez, 196 Wis. 2d 725, 539 N.W.2d 700 (Ct. App.
1995).
14
State v. Garcia, 2000 WI App 81, 234 Wis. 2d 304, 610
N.W.2d 180 (Ct. App. 2000).
15
Since Douangmala, the court of appeals developed a line
of cases that applied the substantial compliance doctrine to
immigration advisements under Wis. Stat. § 971.08(1)(c). State
v. Mursal, 2013 WI App 125, 351 Wis. 2d 180, 839 N.W.2d 180. An
immigration advisement substantially complied with
§ 971.08(1)(c) if it explained all elements of the statute.
Id., ¶16. Thus, minor linguistic differences that did not
change the meaning of the advisement could not form the basis of
plea withdrawal under § 971.08(2). Id. Our decision today does
not affect the substantial compliance doctrine, as no error is
present in an immigration advisement that substantially complies
with § 971.08(1)(c).
20
No. 2015AP2041-CR
substantially similar to that of Wis. Stat. § 971.08(1)(c).16
Wisconsin Court System, Circuit Court Form CR-227, Plea
Questionnaire/Waiver of Rights (revised May 1, 2004),
https://www.wicourts.gov/formdisplay/CR-227.pdf?formNumber=CR-
227&formType=Form&formatId=2&language=en. Thus, we conclude
that Reyes Fuerte had actual knowledge of the potential
immigration consequences of his plea and thus the circuit
court's errors were harmless. This is consistent with pre-
Douangmala court of appeals decisions applying harmless error to
§ 971.08(2). The court of appeals in Lopez concluded the error
was harmless where the trial court completely omitted the
immigration advisement during the plea colloquy, but trial
counsel testified to going over the Plea Questionnaire/Waiver of
Rights form in Spanish with the defendant. State v. Lopez, 196
Wis. 2d 725, 728-29, 539 N.W.2d 700 (Ct. App. 1995). The facts
of Lopez are even more extreme than this case because the
circuit court at least gave Reyes Fuerte an advisement, albeit
an imperfect one. Our conclusion is further bolstered by
Garcia, which found harmless error where the defendant had
actual knowledge of the potential immigration consequences
16
The relevant language in the Plea Questionnaire/Waiver of
Rights form states: "I understand that if I am not a citizen of
the United States, my plea could result in deportation, the
exclusion of admission to this country, or the denial of
naturalization under federal law." Wisconsin Court System,
Circuit Court Form CR-227, Plea Questionnaire/Waiver of Rights
(revised May 1, 2004), https://www.wicourts.gov/formdisplay/CR-
227.pdf?formNumber=CR-227&formType=Form&formatId=2&language=en.
21
No. 2015AP2041-CR
through, inter alia, going over the plea waiver form with
counsel. State v. Garcia, 2000 WI App 81, ¶¶3, 14, 234
Wis. 2d 304, 610 N.W.2d 180.
¶39 Next, Reyes Fuerte has not alleged ineffective
assistance of counsel under Padilla v. Kentucky, 559 U.S. 356
(2010). Padilla held that effective assistance of counsel under
the Sixth Amendment requires defense attorneys to inform
criminal defendants of the potential immigration consequences of
a plea. Id. at 374. We do not hold that the mere lack of a
Padilla ineffective assistance claim is sufficient, on its own,
to prove actual knowledge and thus harmless error when a circuit
court fails to give the advisement as required by Wis. Stat.
§ 971.08(1)(c). However, the lack of such a claim can be a
factor to be included in our consideration to support other
facts of record that show actual knowledge and harmless error.
¶40 Finally, we hold the circuit court's error was
harmless because the immigration consequence at issue in this
case——deportation——was raised by the circuit court. Reyes
Fuerte brought his motion because he was concerned about being
deported, not because he was concerned about being denied
naturalization. Reyes Fuerte never argues that the advisement
given for deportation was deficient in any way. Thus, the
circuit court's error in omitting denial of naturalization is
harmless.
¶41 We hold that, under the circumstances of this case,
the circuit court's errors in giving the plea advisement
required by Wis. Stat. § 971.08(1)(c) are harmless. Reyes
22
No. 2015AP2041-CR
Fuerte knew of the potential immigration consequences because
his counsel went over the plea waiver form, which contains a
substantially similar advisement, with him in Spanish. The
failure to bring any ineffective assistance claim under Padilla
further indicates that counsel did inform Reyes Fuerte of the
potential immigration consequences of his plea. Finally, the
two immigration consequences relevant to Reyes Fuerte were
raised by the circuit court, such that he had knowledge of those
potential consequences.17 To allow him to withdraw his plea now
would be to allow him to "manipulate [Wisconsin's] criminal
justice system in order to circumvent the immigration laws;" we
cannot accept that the legislature intended to, or actually did,
write § 971.08(2) to have such a result. State v. Issa, 186
Wis. 2d 199, 212, 519 N.W.2d 741 (Ct. App. 1994) (Fine, J.,
concurring).
IV. CONCLUSION
¶42 We hold that Reyes Fuerte is not entitled to withdraw
his pleas of guilty to attempting to flee or elude a traffic
officer, contrary to Wis. Stat. § 346.04(3), and second-offense
operating with a restricted controlled substance in his blood,
17
The record reveals that Reyes Fuerte was in deportation
proceedings at the time of his guilty plea. However, the record
does not state why he was in deportation proceedings; it may
have been for the conduct underlying the charges in this case,
but it may not have. Thus, we leave for another case whether a
defendant who was already in deportation proceedings for the
conduct underlying the criminal charge is imputed with knowledge
that a guilty or no contest plea may bring adverse immigration
consequences.
23
No. 2015AP2041-CR
contrary to Wis. Stat. § 346.63(1)(am), pursuant to Wis. Stat.
§ 971.08(2) because the circuit court's error in giving an
imperfect immigration advisement under Wis. Stat. § 971.08(1)(c)
was harmless. In so doing, we overrule this court's decision in
State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1
because it was objectively wrong due to its failure to properly
address the harmless error statutes.
By the Court.—The decision of the court of appeals is
reversed.
24
No. 2015AP2041-CR.ssa
¶43 SHIRLEY S. ABRAHAMSON, J. (dissenting). The State
of Wisconsin, petitioner in the instant case, presented one
issue for review:
Now that criminal defense attorneys are obligated to
advise their clients about the immigration
consequences of their pleas, Padilla v. Kentucky, 559
U.S. 356 (2010), should the Wisconsin Supreme Court
overturn its decision in State v. Douangmala, 2002 WI
62, 253 Wis. 2d 173, 646 N.W.2d 1, and reinstate the
harmless error rule to prohibit a defendant who was
aware of the potential immigration consequences of his
plea from being able to withdraw the plea because the
circuit court failed to give a statutory immigration
warning that complied with Wis. Stat. § 971.08(1)(c)?
Rather than answer this single question limited to the effect of
Padilla v. Kentucky, 559 U.S. 356 (2010), the majority opinion
reaches beyond the issue presented to reinterpret anew Wis.
Stat. §§ 971.08(1)(c), 971.08(2), and 971.26. In so doing, the
majority overrules State v. Douangmala, 2002 WI 62, 253
Wis. 2d 173, 646 N.W.2d 1, a unanimous decision of this court
that has gone unchallenged for fifteen years and has been cited
and relied upon in numerous cases. As the majority makes clear,
Padilla has no effect on Douangmala.
¶44 The majority's errors are threefold. First,
Douangmala was properly decided, and the majority's contrary
conclusion is unpersuasive and objectively wrong. Second, the
majority announces a novel interpretation of the harmless error
statute with implications far beyond the present case, affecting
future petitions for plea withdrawal under Wis. Stat.
§ 971.08(2). Third, the majority flouts the generally accepted
rule of stare decisis that an appellate court adheres to its own
1
No. 2015AP2041-CR.ssa
prior decisions unless there are compelling reasons not to do
so. Accordingly, I dissent.
I
¶45 In Douangmala, the unanimous court reached two
conclusions:
(1) The plain text of Wis. Stat. § 971.08(1)(c) directs and
requires a circuit court to address a defendant personally
and advise the defendant that his plea of guilty or no
contest for the offense may result in deportation, the
exclusion from admission to the United States, or the
denial of naturalization; and
(2) If the circuit court fails to so advise a defendant who
later shows that the plea is likely to result in
deportation, the exclusion from admission to the United
States, or the denial of naturalization, the court shall
vacate any applicable judgement and allow the defendant to
withdraw his plea.
Douangmala, 253 Wis. 2d 173, ¶¶3, 4.
¶46 In reaching these conclusions, the Douangmala court
examined Wis. Stat. §§ 971.08(1)(c), 971.08(2), and 971.26.
¶47 Wisconsin Stat. § 971.08(1)(c) directs a circuit court
to give a warning about immigration consequences. Before the
court accepts a plea of guilty or no contest, the legislature
requires the circuit court to do the following:
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
2
No. 2015AP2041-CR.ssa
from admission to this country or the denial of
naturalization, under federal law."
Wis. Stat. § 971.08(1)(c).
¶48 Wisconsin Stat. § 971.08(2) provides the remedy if the
circuit court fails to give the statutorily mandated warnings
about immigration consequences. The remedy provision of the
statute reads as follows:
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.
Wis. Stat. § 971.08(2).
¶49 I turn now to Wis. Stat. § 971.26, the harmless error
statute. This statute saves numerous proceedings in which an
error is made. The harmless error statute applied in criminal
cases provides as follows:
No indictment, information, complaint or warrant shall
be invalid, nor shall the trial, judgment or other
proceedings be affected by reason of any defect or
imperfection in matters of form which do not prejudice
the defendant.
Wis. Stat. § 971.26.1
1
The majority also invokes Wis. Stat. § 805.18, the
harmless error statute applicable to civil actions. The
majority claims that § 805.18 is made applicable to criminal
actions by Wis. Stat. § 972.11(1). Majority op., ¶22.
Wisconsin Stat. § 972.11(1) provides as follows:
Except as provided in subs. (2) to (4), the rules of
evidence and practice in civil actions shall be
applicable in all criminal proceedings unless the
(continued)
3
No. 2015AP2041-CR.ssa
¶50 I now return to Wis. Stat. § 971.08. Applying the
plain text rule of interpretation to § 971.08(2), the unanimous
Douangmala court concluded that if a circuit court fails to give
the statutory warning, the legislature explicitly directs that
the defendant is entitled to withdraw the plea upon a showing
that the plea is likely to result in the defendant's
deportation. Douangmala, 253 Wis. 2d 173, ¶¶3, 4.
¶51 Relying on the text of Wis. Stat. § 971.08(2), the
unanimous Douangmala court also concluded that prior cases
applying the harmless error rule to § 971.08 were "objectively
wrong under the language of the statute." Douangmala, 253
Wis. 2d 173, ¶42. These cases were explicitly overruled.
Douangmala, 253 Wis. 2d 173, ¶42.
¶52 The justices joining the majority opinion——committed
to applying the same plain-text analysis to the identical text
of the statutes interpreted in Douangmala——overrule the
unanimous Douangmala decision believing it to be "objectively
wrong." The majority faults the Douangmala court for failing to
context of a section or rule manifestly requires a
different construction. No guardian ad litem need be
appointed for a defendant in a criminal action.
Chapters 885 to 895 and 995, except ss. 804.02 to
804.07 and 887.23 to 887.26, shall apply in all
criminal proceedings.
Wis. Stat. § 972.11(1).
The majority does not explain how or why § 805.18
constitutes a "rule[] of evidence or practice in civil actions."
Thus, § 805.18's applicability to criminal cases is, at best,
questionable. Regardless, there is nothing in my analysis that
would be affected by § 805.18's applicability.
4
No. 2015AP2041-CR.ssa
harmonize Wis. Stat. § 971.08(2) (remedy provision) with Wis.
Stat. § 971.26 (harmless error). Majority op., ¶¶26-36.
¶53 The majority acknowledges that when two statutes
conflict with one another, the more specific statute takes
precedence over the more general statute. Majority op., ¶29.2
¶54 The majority gets around this rule, however, by
declaring "that applying harmless error analysis does not
facially violate Wis. Stat. § 971.08(2), but failing to apply
harmless error analysis does facially violate Wis. Stat.
§§ 971.26 and 805.18." Majority op., ¶32.
¶55 Curiously, the majority does not explain its
assertion. The majority recognizes that both Wis. Stat.
§ 971.08(2) and § 971.26 use the mandatory "shall," and neither
statute is "more mandatory" than the other, but the majority
somehow reaches the conclusion that applying the harmless error
rule to § 971.08(2) does not create a conflict. How? Wis.
Stat. § 971.08(2) sets forth a simple "if-then" conditional
sentence: If the circuit court fails to provide the immigration
consequence warning and the defendant shows that his plea is
likely to result in deportation, then the circuit court shall
2
The majority relies on Rouse v. Theda Clark Med. Ctr.,
2007 WI 87, ¶37, 302 Wis. 2d 358, 735 N.W.2d 30. See also
Marder v. Bd. of Regents of Univ. of Wis. Sys., 2005 WI 159,
¶23, 286 Wis. 2d 252, 706 N.W.2d 110 ("[W]here a specific
statutory provision leads in one direction and a general
statutory provision in another, the specific statutory provision
controls.").
5
No. 2015AP2041-CR.ssa
vacate the applicable judgment and permit the defendant to
withdraw his plea. No exception is made for harmless errors.3
¶56 In my view, it is evident that there is a conflict
between Wis. Stat. §§ 971.08(2) and 971.26. To resolve this
conflict, the more specific statute should control over the more
general statute.
II
¶57 I must also call attention to the staggering breadth
of the majority's application of the harmless error statute in
the instant case, and therefore, in future cases. See majority
op., ¶¶31-33. According to the majority, in a battle between
competing "shall" directives, the harmless error statute will
always win out. This conclusion is in part supported by the
3
The majority points out that harmless error statutes
existed long before Wis. Stat. § 971.08(2) was enacted. So
what? This court has given effect to specific statutes over
general statutes for at least a century. See Chippewa &
Flambeau Improvement Co. v. R.R. Comm'n of Wis., 159 N.W. 739,
744, 164 Wis. 105 (1916). Rather than explicitly excepting
§ 971.08(2) from the harmless error rule, the legislature has
relied on the courts to apply this century-old canon of
construction to give effect to § 971.08(2).
Moreover, the majority relies in part on Federal Rule of
Criminal Procedure 11(b)(1)(O), which requires a federal
district court to inform defendants that their conviction may
result in adverse immigration consequences before accepting
their pleas of guilty or nolo contendere. Majority op., ¶34. A
defendant's claim that Rule 11(b)(1)(O) was violated is subject
to harmless error analysis. Majority op., ¶35 (citing United
States v. Anderson, 624 F. App'x 106, 107 (4th Cir. 2015)).
However, there is no federal analogue to Wis. Stat. § 971.08(2),
and it is the remedy provision unique to Wisconsin that is at
issue in the instant case. The federal rule is of no help to
the majority.
6
No. 2015AP2041-CR.ssa
fact that the harmless error statute, in one form or another,
existed at least as early as 1897, long before Wis. Stat.
§ 971.08(2) was enacted.
¶58 Apparently, hereafter, every statute enacted and every
case decided after 1897 is subject to a mandatory harmless error
analysis (except perhaps when a violation of a constitutional or
statutory provision has been declared prejudicial per se). This
poses a conundrum for legislative drafters: What words should
the drafter use if the legislature does not want the mandatory
harmless error statute to apply? The legislature explicitly
stated in the instant case that it did not want the mandatory
harmless error to apply but the majority is ignoring the
legislative direction.
III
¶59 I now turn to the issue of affording due respect to
precedent. The court's interpretation and application of Wis.
Stat. § 971.08 and the harmless error statute has not been
challenged or changed since the Douangmala decision. Since
Douangmala was decided, neither the text of § 971.08(2) nor the
text of the harmless error statute has been changed by the
legislature. Generally speaking, legislative acquiescence to a
judicial construction of a statute gives rise to a presumption
that the judicial construction should stand. See, e.g., Force
ex rel. Welcenbach v. Am. Family Mut. Ins. Co., 2014 WI 82, ¶124
n.76, 356 Wis. 2d 582, 850 N.W.2d 866; Milwaukee Journal
Sentinel v. City of Milwaukee, 2012 WI 65, ¶43, n.21, 341
Wis. 2d 607, 815 N.W.2d 367; Wenke v. Gehl Co., 2004 WI 103,
7
No. 2015AP2041-CR.ssa
¶¶32-35, 274 Wis. 2d 220, 682 N.W.2d 405; State v. Hansen, 2001
WI 53, ¶38, 243 Wis. 2d 328, 627 N.W.2d 195; Reiter v. Dyken, 95
Wis. 2d 461, 471-72, 290 N.W.2d 510 (1980).
¶60 Furthermore, litigants and courts have relied on
Douangmala. Douangmala has been cited 168 times. Though not an
absolute rule, stare decisis protects litigants' and courts'
reliance on judicial decisions.
¶61 A court should not overrule a judicial interpretation
of a statute when the court simply disagrees with the rationale
of the prior decision. Rather, the party seeking the overruling
must show "not only that [the decision] was mistaken but also
that it was objectively wrong, so that the court has a
compelling reason to overrule it." Wenke, 274 Wis. 2d 220, ¶21.
As I explained above, there are no compelling reasons for
overruling Douangmala, and the majority reaches a contrary
conclusion overruling Douangmala by hoping that the reader will
not scrutinize the majority's baseless conclusion that applying
harmless error to Wis. Stat. § 971.08(2) does not give rise to a
conflict——even though it plainly does.
¶62 Though not an absolute rule, stare decisis promotes
stability, coherence, and the rule of law. By disregarding the
generally accepted interpretative approach of adhering to a
prior judicial interpretation of a statute and by overruling the
8
No. 2015AP2041-CR.ssa
Douangmala decision, the majority scoffs at stare decisis and
jeopardizes finality and certainty in the law.4
* * * *
¶63 The majority has no justification beyond its doctrinal
disposition to overrule Douangmala. The only change since the
Douangmala decision is the make up of the court. A change in
judges is not a valid reason to overturn a decision of the
court. "A basic change in the law upon a ground no firmer than
a change in our membership invites the popular misconception
that this institution is little different from the two political
branches of the Government. No misconception could do more
lasting injury to this Court and to the system of law which it
is our abiding mission to serve." Mitchell v. W.T. Grant Co.,
416 U.S. 600, 636 (1974) (Stewart, J., dissenting).
¶64 The majority opinion represents the will of the
justices joining the opinion; it does not promote the rule of
law. Accordingly, I dissent.
¶65 I am authorized to state that Justice ANN WALSH
BRADLEY joins this dissenting opinion.
4
See also Planned Parenthood of S.E. Penn. v. Casey, 505
U.S. 833, 864 (1992) (citing Mitchell) ("To overrule prior law
for no other reason than [a present doctrinal disposition to
come out differently from the previous court] would run counter
to the view repeated in our cases, that a decision to overrule
should rest on some special reason over and above the belief
that a prior case was wrongly decided."); Mapp v. Ohio, 367
U.S. 643, 677 (1961) (Harlan, J., dissenting).
9
No. 2015AP2041-CR.ssa
1