State v. Fernando Ortiz-Mondragon

2015 WI 73SUPREME COURT OF WISCONSIN
CASE NO.: 2013AP2435-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent,
v.
Fernando Ortiz-Mondragon,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 358 Wis. 2d 423, 856 N.W.2d 339)
(Ct. App. 2014 – Published)
PDC No: 2014 WI App 114OPINION FILED: July 9, 2015
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 21, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Brown
JUDGE: Donald R. Zuidmulder
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, ABRAHAMSON, J.J., dissent. (Opinion
Filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Michelle L. Velasquez, assistant state public defender, and
oral argument by Michelle L. Velasquez.
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.
An amicus curiae brief was filed by Barbara Graham on
behalf of the Catholic Charities Legal Services for Immigrants,
Milwaukee.
2015 WI 73NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2013AP2435-CR
(L.C. No. 2012CF1101)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent,
FILED
v. JUL 9, 2015
Fernando Ortiz-Mondragon, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 ANNETTE KINGSLAND ZIEGLER, J. This is a review of a
published decision of the court of appeals,1 which affirmed the
Brown County Circuit Court's2 judgment of conviction and order
denying Fernando Ortiz-Mondragon's ("Ortiz-Mondragon") post-
conviction motion to withdraw his no-contest plea to substantial
battery as an act of domestic abuse.3
1
State v. Ortiz-Mondragon, 2014 WI App 114, 358
Wis. 2d 423, 856 N.W.2d 339.
2
The Honorable Donald R. Zuidmulder presided.
3
Some documents in the record spell the defendant's name as
Fernando Ortiz-Mondragen.
No. 2013AP2435-CR
¶2 Ortiz-Mondragon argues that the circuit court erred by
denying his motion to withdraw his plea. He argues that he
should be allowed to withdraw his plea on the basis of
ineffective assistance of counsel under Padilla v. Kentucky, 559
U.S. 356 (2010). In Padilla the Supreme Court held that "[w]hen
the law is not succinct and straightforward . . . , a criminal
defense attorney need do no more than advise a noncitizen client
that pending criminal charges may carry a risk of adverse
immigration consequences." Padilla v. Kentucky, 559 U.S. 356,
369 (2010). "But when the deportation consequence is truly
clear, . . . the duty to give correct advice is equally clear."
Id.¶3 Specifically, Ortiz-Mondragon argues that his trial
counsel performed deficiently by failing to inform him that his
no-contest plea to substantial battery, with a domestic abuse
enhancer, was certain to result in his deportation and permanent
exclusion from the United States. He argues that these
immigration consequences were clear and certain because his
substantial battery was a "crime involving moral turpitude"
under federal immigration law, thereby rendering him
automatically deportable and permanently inadmissible.4 Ortiz-
4
We recognize that an alien could be "deportable" if
"convicted of a crime of domestic violence." 8 U.S.C.
§ 1227(a)(2)(E)(i). However, whether an alien will actually be
deported because of such a conviction is far from certain. We
do not address this issue because it was not raised, briefed, or
argued by any of the parties in the case at issue. See Aurora
Consol. Health Care v. LIRC, 2012 WI 49, ¶43 n.7, 340
(continued)
2
No. 2013AP2435-CR
Mondragon further argues that his trial counsel performed
deficiently by failing to research or consider the possible
immigration consequences of the plea agreement. He argues that
this deficient performance prejudiced him because he would have
insisted on going to trial had he known that his plea to
substantial battery would subject him to mandatory deportation
and permanent exclusion from the United States. He reasons
that, because he has lived, worked, and raised a family in the
United States since 1997, he would have sought a plea agreement
that avoided these immigration consequences. If he were unable
to secure such a plea agreement, he argues that he would have
gone to trial to leave open the possibility of remaining in the
United States.
¶4 The State argues that the circuit court correctly
denied Ortiz-Mondragon's motion to withdraw his plea. The State
argues that trial counsel's performance was not deficient. The
State contends that, because federal law is not succinct and
straightforward with respect to the possible immigration
consequences of Ortiz-Mondragon's plea, trial counsel gave
correct advice under Padilla when he advised Ortiz-Mondragon
that the "plea could result in deportation, the exclusion of
admission to this country, or the denial of naturalization under
federal law." Specifically, the State contends that federal
immigration law does not clearly and succinctly provide that
Wis. 2d 367, 814 N.W.2d 824 (declining to address arguments not
raised before this court).
3
No. 2013AP2435-CR
Ortiz-Mondragon's conviction for substantial battery would
constitute a crime involving moral turpitude. The State further
argues that, if we determine that trial counsel's performance
was deficient, we should remand the matter to the circuit court
for an evidentiary hearing on the issue of whether the
deficiency prejudiced Ortiz-Mondragon.
¶5 We conclude that 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." See Padilla, 559 U.S. at 369. 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) (2011-12).5 In addition, Ortiz-Mondragon's
5
This statute provides:
Before the court accepts a plea of guilty or no
contest, it shall . . . [a]ddress the defendant
personally and advise the defendant as follows: "If
(continued)
4
No. 2013AP2435-CR
trial attorney did not perform deficiently by failing to further
research the immigration consequences of the plea agreement.
Because Ortiz-Mondragon failed to prove deficient performance,
we do not consider the issue of prejudice.
I. FACTUAL AND PROCEDURAL BACKGROUND
¶6 In 1997 Ortiz-Mondragon came to the United States from
Mexico. In 2002 he moved to Wisconsin to work in the
agricultural industry. He has four children, all of whom are
United States citizens and reside in Wisconsin.
¶7 On September 14, 2012, the State filed a criminal
complaint charging Ortiz-Mondragon with: (1) substantial
battery, contrary to Wis. Stat. § 940.19(2); (2) false
imprisonment, contrary to Wis. Stat. § 940.30; (3) felony
intimidation of a victim, contrary to Wis. Stat. § 940.45(1);
(4) criminal damage to property, contrary to Wis. Stat.
§ 943.01(1); and (5) disorderly conduct, contrary to Wis. Stat.
§ 947.01(1). Each count included a domestic abuse enhancer
under Wis. Stat. § 968.075. All of the counts stemmed from one
incident that occurred on September 12, 2012.
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) (2011-12). All subsequent references
to the Wisconsin Statutes are to the 2011-12 version unless
otherwise indicated.
5
No. 2013AP2435-CR
¶8 According to the complaint, Ortiz-Mondragon violently
attacked J.S., who was his cohabiting girlfriend at the time and
who is the mother of two of his children. Ortiz-Mondragon
became enraged because J.S. was talking to a male neighbor on
the phone. Ortiz-Mondragon jumped on top of J.S. while she was
talking on the phone in bed. Their two young children were in
the room with them. Ortiz-Mondragon put his hands around J.S.'s
neck and began squeezing. J.S. had trouble breathing and
thought that Ortiz-Mondragon was going to kill her. When J.S.
managed to get off of the bed and tried to leave the bedroom,
Ortiz-Mondragon punched her in the face and mouth and hit her in
the back of the head. J.S.'s head bled profusely. Ortiz-
Mondragon also broke J.S.'s phone in half. When J.S. later
sought treatment for her injuries, a wound on her face required
five staples.
¶9 On September 24, 2012, Ortiz-Mondragon waived his
right to a preliminary examination and was bound over for trial.
That same day, the State filed an information that contained the
same five charges as the complaint.
¶10 On November 15, 2012, the State made a plea offer to
Ortiz-Mondragon. If Ortiz-Mondragon pled guilty or no contest
to substantial battery, criminal damage to property, and
disorderly conduct, all with a domestic abuse enhancer, the
State would dismiss and read-in the intimidation and false
imprisonment charges. The State would recommend three years of
probation and four months in jail as a condition of probation.
6
No. 2013AP2435-CR
¶11 On November 27, 2012, the circuit court held a plea
and sentencing hearing. Ortiz-Mondragon's attorney, Raj Kumar
Singh ("Attorney Singh"), informed the court that the State
recently made a plea offer to the defendant. Attorney Singh
stated that he had "presented" the State's plea offer to Ortiz-
Mondragon, "given him paperwork to use to study it, given him
information to use in counseling, and [Ortiz-Mondragon] has just
now confirmed that now he's made his final decision. He would
like to take the offer."
¶12 Attorney Singh then handed a plea questionnaire and
waiver of rights form, along with "some other papers," to the
circuit court. Ortiz-Mondragon had signed the plea
questionnaire and waiver of rights form, which stated, inter
alia: "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." Attorney Singh had signed the plea questionnaire
and waiver of rights form immediately below the following
affirmation: "I am the attorney for the defendant. I have
discussed this document and any attachments with the defendant.
I believe the defendant understands it and the plea agreement.
The defendant is making this plea freely, voluntarily, and
intelligently. . . . "
¶13 Ortiz-Mondragon then stated that he wished to plead no
contest to three counts pursuant to the plea agreement. The
circuit court then informed him of the possible immigration
consequences of his pleas.
7
No. 2013AP2435-CR
THE COURT: All right. The law requires I
address you now and advise you of the following: If
you're not a citizen of the United States, the plea
you offer me could result in your deportation, the
exclusion of admission, or the denial of
naturalization under federal law. . . .
These are collateral consequences to [sic] on top of
whatever I sentence you to. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: All right. Do you still wish to
offer me these pleas then?
THE DEFENDANT: Yes.
¶14 The circuit court then confirmed that Ortiz-Mondragon
and his attorney had discussed the plea questionnaire and waiver
of rights form, which contained a warning about possible
immigration consequences of a conviction.
THE COURT: All right. In my right hand I have a
plea-questionnaire-and-waiver-of-rights form. I have
the standard jury instruction for the charge of
substantial battery with intent to cause bodily harm
as well as the elements of criminal damage and
disorderly conduct. Do you see all these documents?
THE DEFENDANT: Yes.
THE COURT: Did you sign the plea questionnaire?
THE DEFENDANT: Yes.
THE COURT: Before you signed it, did you read it
over carefully?
THE DEFENDANT: Yes.
THE COURT: And while you were going over all
these documents, did you have an opportunity to fully
discuss it with your attorney, Mr. Singh?
THE DEFENDANT: Yes.
8
No. 2013AP2435-CR
THE COURT: And are you satisfied with his
representation thus far?
THE DEFENDANT: Yes.
¶15 The court concluded: "I'm going to find the
defendant's pleas today to be freely, voluntarily, and
intelligently entered on the record I have made. I'll
incorporate in support of that the plea-questionnaire-and-
waiver-of-rights form." The court then determined that "[t]he
facts do support his pleas" and "adjudge[d] him guilty today of
substantial battery and criminal damage to property and
disorderly conduct."
¶16 The State then explained that, pursuant to a joint
recommendation, it was going to recommend "three years'
probation with four months' jail and other standard conditions
of probation." The State explained that it had "consulted with
the victim," Ortiz-Mondragon committed a "fairly violent
offense," and he had no prior criminal record. The State also
noted that although Ortiz-Mondragon "was on an immigration hold
at the . . . initial appearance," he was not "on any other type
of hold at all."
¶17 The victim of Ortiz-Mondragon's domestic abuse, J.S.,
then spoke to the court. She stated that she would like for the
felony battery charge to be reduced to a misdemeanor. J.S.
stated that Ortiz-Mondragon has two children with her and also
has two other children, and they "were trying to keep them here
in the states, but if he ends up with a felony charge, that's
not going to happen." The court informed J.S. that Ortiz-
9
No. 2013AP2435-CR
Mondragon had just been found guilty of a felony. J.S. then
stated that probation and four months in jail were "fine" with
her.
¶18 Attorney Singh then asked the court to grant Ortiz-
Mondragon sentence credit, which the court granted. The court
then asked Attorney Singh whether Ortiz-Mondragon has an
Immigration and Customs Enforcement hold.6 Attorney Singh
stated, "I think there is, but the information I get is
secondhand."
¶19 Ortiz-Mondragon then apologized for his behavior and
stated that he "never had a problem like this before."
¶20 The court then proceeded to sentence Ortiz-Mondragon.
It stated that its sentence would be based on "the protection of
the public, punishment of the defendant, the defendant's
rehabilitative needs, and other factors." The court noted that
it received a joint recommendation and that it "defer[s] a
little bit to [the State's] judgment" in "these kinds of cases
because [the State] handle[s] so many of them . . . ." The
court then discussed the "great impact parents' behaviors have
on their children" and encouraged Ortiz-Mondragon to "do a
better job of being a parent and an adult." The court then
adopted the joint recommendation, withheld sentence on all three
counts, placed Ortiz-Mondragon on probation for three years, and
6
The United States Immigration and Customs Enforcement is a
component of the United States Department of Homeland Security.
10
No. 2013AP2435-CR
sentenced him to four months in the county jail as a condition
of probation.
¶21 J.S. then asked the court if Ortiz-Mondragon will "be
let go" after his jail sentence. The court stated that he would
be let go "if the immigration doesn't put a hold on him. If the
immigration people put a hold on him, that's a federal issue.
Our officers have nothing to do with that."
¶22 After Ortiz-Mondragon completed his jail sentence,7
Immigration and Customs Enforcement took him into custody and
commenced removal proceedings against him. He agreed to a
voluntary departure to avoid a deportation on his record.8
¶23 On September 17, 2013, Ortiz-Mondragon filed a
postconviction motion to withdraw his no-contest plea to
substantial battery on grounds of ineffective assistance of
counsel. In the motion, Ortiz-Mondragon argued that his
7
The record does not indicate exactly when Ortiz-Mondragon
was released from jail. At the plea and sentencing hearing on
November 27, 2012, the circuit court sentenced Ortiz-Mondragon
to four months in jail and granted him 76 days of sentence
credit. Accordingly, he seems to have been released from jail
in early or mid-January 2013.
8
Ortiz-Mondragon's motion to withdraw his plea discusses
these events but does not indicate when they took place. The
record contains a letter from Immigration and Customs
Enforcement ("ICE"), which was filed with the Brown County
Circuit Court on December 12, 2012. This letter requested that
the circuit court forward to ICE certified copies of the
complaint, information, judgment and commitment order for this
case. The letter stated that these documents would help ICE "in
its efforts to expeditiously remove alien criminals from the
United States." Under "charge(s)," the letter stated "940.19(2)
Substantial Battery——Intend Bodily Harm."
11
No. 2013AP2435-CR
substantial battery as an act of domestic abuse was a "crime
involving moral turpitude" under federal immigration law,
thereby rendering him subject to mandatory deportation and
permanent exclusion from the United States. He argued that
these consequences of his substantial battery conviction were
clear and that under Padilla his attorney performed deficiently
in failing to inform him of these consequences. Ortiz-Mondragon
further argued that this deficiency prejudiced him. He
contended that, had he known the immigration consequences of
this conviction, he would have sought a different plea agreement
or would have insisted on going to trial in order to preserve
the possibility of remaining in or returning to the United
States to be with his family.
¶24 On October 9, 2013, the circuit court issued a written
order denying Ortiz-Mondragon's motion without a Machner
hearing.9 The court first held that Ortiz-Mondragon's "trial
counsel was not required to provide [Ortiz-Mondragon] with
unequivocal advice regarding the immigration-related
consequences of his plea because the law elucidating the
9
See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct.
App. 1979). "[T]he circuit court has the discretion to deny the
postconviction motion without a Machner hearing 'if the motion
fails to allege sufficient facts to raise a question of fact,
presents only conclusory allegations, or if the record
conclusively demonstrates that the defendant is not entitled to
relief.'" State v. Roberson, 2006 WI 80, ¶43, 292 Wis. 2d 280,
717 N.W.2d 111 (emphasis added in Roberson) (quoting State v.
Curtis, 218 Wis. 2d 550, 555 n. 3, 582 N.W.2d 409 (Ct. App.
1998)).
12
No. 2013AP2435-CR
consequences is not succinct and straightforward." The court
reasoned that "a 'crime involving moral turpitude' is a broad,
rather than specific, classification of crimes," and Ortiz-
Mondragon failed to prove that his substantial battery was a
crime involving moral turpitude. Quoting Padilla, 559 U.S. at
369, the circuit court stated that, "[b]ecause the law is not
succinct and straightforward, [Ortiz-Mondragon's] counsel 'need
do no more than advise [Ortiz-Mondragon] that pending criminal
charges may carry a risk of adverse immigration consequences.'"
Ortiz-Mondragon "does not assert that trial counsel did not so
advise him, and the record affirmatively establishes that trial
counsel did so advise him."
¶25 The circuit court discussed the immigration warnings
and advice that Ortiz-Mondragon received. In particular, the
court noted that Ortiz-Mondragon "acknowledges that he was given
equivocal immigration warnings by both the Court, as required by
[Wis. Stat. §] 971.08, and the Plea Questionnaire/Waiver of
Rights form." The court also noted that, at the plea and
sentencing hearing, "[Ortiz-Mondragon] confirmed with the Court
that he read [the plea questionnaire] over carefully before
signing it and had the opportunity to fully discuss it with his
attorney." The court further noted that Attorney Singh signed
the plea questionnaire form under a statement affirming that he
discussed that form with Ortiz-Mondragon and that Ortiz-
Mondragon understood the form and the plea agreement. The court
concluded that Attorney Singh did not perform deficiently.
Specifically, the court concluded that "[u]nder the
13
No. 2013AP2435-CR
circumstances, [Ortiz-Mondragon] has not stated sufficient facts
which entitle him to a hearing on his postconviction motion.
The facts, as alleged, demonstrate that [Ortiz-Mondragon's]
counsel did not perform deficiently by providing [Ortiz-
Mondragon] with equivocal, rather than unequivocal, advice
regarding the immigration-related consequences of his plea."
The court did not address the issue of prejudice.
¶26 On October 7, 2014, the court of appeals affirmed the
circuit court's order denying Ortiz-Mondragon's motion to
withdraw his plea. The court of appeals explained that Ortiz-
Mondragon "has not identified clear authority indicating any of
the crimes to which he pled were crimes of moral turpitude."
State v. Ortiz-Mondragon, 2014 WI App 114, ¶13, 358 Wis. 2d 423,
856 N.W.2d 339. The court of appeals reasoned that "[i]f an
attorney must search federal court and unfamiliar administrative
board decisions from around the country to identify a category
of elements that together constitute crimes of moral turpitude,
and then determine whether a charged crime fits that category,
then the law is not 'succinct, clear, and explicit.'" Id., ¶12
(quoting Padilla, 559 U.S. at 368). It concluded that "Ortiz–
Mondragon's attorney did not perform deficiently by failing to
unequivocally inform him that his plea would result in
deportation and permanent inadmissibility." Id., ¶13. The
court of appeals did not address the issue of prejudice.
¶27 On November 6, 2014, Ortiz-Mondragon filed a petition
for review, which we granted on December 18, 2014.
II. STANDARD FOR PLEA WITHDRAWAL AND STANDARD OF REVIEW
14
No. 2013AP2435-CR
¶28 "In general 'a circuit court should freely allow a
defendant to withdraw his plea prior to sentencing for any fair
and just reason, unless the prosecution [would] be substantially
prejudiced.'" State v. Lopez, 2014 WI 11, ¶2, 353 Wis. 2d 1,
843 N.W.2d 390 (emphasis added) (quoting State v. Jenkins, 2007
WI 96, ¶2, 303 Wis. 2d 157, 736 N.W.2d 24) (internal quotation
marks omitted). In contrast, "the general rule [is] that a
defendant seeking to withdraw a guilty or no contest plea after
sentencing must prove manifest injustice by clear and convincing
evidence." State v. Negrete, 2012 WI 92, ¶29, 343 Wis. 2d 1,
819 N.W.2d 749 (emphasis added) (citations omitted).
Ineffective assistance of counsel is one type of manifest
injustice. State v. Taylor, 2013 WI 34, ¶49, 347 Wis. 2d 30,
829 N.W.2d 482.
¶29 "The clear and convincing standard for plea withdrawal
after sentencing, which is higher than the 'fair and just'
standard before sentencing, 'reflects the State's interest in
the finality of convictions, and reflects the fact that the
presumption of innocence no longer exists.'" Id., ¶48 (quoting
State v. Cross, 2010 WI 70, ¶42, 326 Wis. 2d 492, 786
N.W.2d 64). "The higher burden 'is a deterrent to defendants
testing the waters for possible punishments.'" Id. (quoting
State v. Nawrocke, 193 Wis. 2d 373, 379–80, 534 N.W.2d 624 (Ct.
App. 1995)). "Disappointment in the eventual punishment does
not rise to the level of a manifest injustice." Id., ¶49
(citing Nawrocke, 193 Wis. 2d at 379).
15
No. 2013AP2435-CR
¶30 "A claim of ineffective assistance of counsel is a
mixed question of fact and law." State v. Carter, 2010 WI 40,
¶19, 324 Wis. 2d 640, 782 N.W.2d 695 (citations omitted). "We
will uphold the circuit court's findings of fact unless they are
clearly erroneous." Id. (citation omitted). "Findings of fact
include 'the circumstances of the case and the counsel's conduct
and strategy.'" Id. (quoting State v. Thiel, 2003 WI 111, ¶21,
264 Wis. 2d 571, 665 N.W.2d 305) (quotation marks omitted).
"Moreover, this court will not exclude the circuit court's
articulated assessments of credibility and demeanor, unless they
are clearly erroneous." Id. (citing Thiel, 264 Wis. 2d 57,
¶23). "However, the ultimate determination of whether counsel's
assistance was ineffective is a question of law, which we review
de novo." Id.III. ANALYSIS
¶31 "Both the United States Constitution and the Wisconsin
Constitution guarantee criminal defendants the right to
counsel." Carter, 324 Wis. 2d 640, ¶20 (citing U.S. Const.
amend. VI; Wis. Const. art. I, § 7). "The United States Supreme
Court has recognized that 'the right to counsel is the right to
the effective assistance of counsel.'" Id. (quoting Strickland
v. Washington, 466 U.S. 668, 686 (1984)) (quotation marks
omitted).
¶32 "Whether a convicted defendant received ineffective
assistance of counsel is a two-part inquiry." Id., ¶21 (citing
Strickland, 466 U.S. at 687). "First, the defendant must prove
that counsel's performance was deficient." Id. (citing
16
No. 2013AP2435-CR
Strickland, 466 U.S. at 687). "Second, if counsel's performance
was deficient, the defendant must prove that the deficiency
prejudiced the defense." Id. (citing Strickland, 466 U.S. at
687). To succeed on a claim of ineffective assistance of
counsel, a defendant must prove both deficient performance and
prejudice. Id. (citing Strickland, 466 U.S. at 687). If a
defendant fails to prove deficient performance, a reviewing
court need not consider whether the defendant was prejudiced.
See id., ¶36; State v. Franklin, 2001 WI 104, ¶13, 245
Wis. 2d 582, 629 N.W.2d 289 (citing Strickland, 466 U.S. at
697).
¶33 The Supreme Court in Padilla held "that advice
regarding deportation is not categorically removed from the
ambit of the Sixth Amendment right to counsel." Id. at 366.
The Court explained that the scope of counsel's duty to provide
advice regarding deportation depends on whether the immigration
consequences of a conviction are clear, succinct, and
straightforward. It explained that counsel's duty to provide
advice regarding deportation "is more limited" in "situations in
which the deportation consequences of a particular plea are
unclear or uncertain." Id. at 369. Specifically, "[w]hen the
law is not succinct and straightforward . . . , a criminal
defense attorney need do no more than advise a noncitizen client
that pending criminal charges may carry a risk of adverse
immigration consequences." Id. (emphases added). "But when the
deportation consequence is truly clear, . . . the duty to give
correct advice is equally clear." Id.
17
No. 2013AP2435-CR
¶34 The Court in Padilla held that defense counsel
performed deficiently by incorrectly advising the defendant that
he would not be deported upon conviction. Id. at 368-69. The
Court reasoned that "the terms of the relevant immigration
statute are succinct, clear, and explicit in defining the
removal consequence for Padilla's conviction." Id. at 368
(citing 8 U.S.C. § 1227(a)(2)(B)(i)). "The consequences of
Padilla's plea could easily be determined from reading the
removal statute, his deportation was presumptively mandatory,
and his counsel's advice was incorrect." Id. at 369.
¶35 In order to determine whether Ortiz-Mondragon's trial
counsel performed deficiently, we must first determine what
advice Padilla required Ortiz-Mondragon's trial attorney to
provide. To that end, we will determine whether immigration law
is succinct, clear, and explicit such that Ortiz-Mondragon's
trial attorney should have discovered that Ortiz-Mondragon would
be deported and excluded because his substantial battery was a
crime involving moral turpitude. Second, we will determine
whether Ortiz-Mondragon's trial attorney performed deficiently
under Padilla by giving inadequate advice and failing to further
research the immigration consequences of the plea agreement.
Because we conclude that Ortiz-Mondragon's trial attorney did
not perform deficiently, we do not address prejudice.
A. Is Immigration Law Succinct, Clear, and Explicit
that Ortiz-Mondragon's Substantial Battery
Was a Crime Involving Moral Turpitude?
18
No. 2013AP2435-CR
¶36 The relevant immigration statutes authorize
deportation and exclusion of an alien who is convicted of a
"crime involving moral turpitude."10 Under certain
circumstances, "[a]ny alien who . . . is convicted of a crime
involving moral turpitude . . . is deportable." 8 U.S.C.
§ 1227(a)(2)(A)(i). Any such alien "shall, upon the order of
the Attorney General, be removed . . . ." 8 U.S.C. § 1227(a)
(intro.). The Attorney General may not "cancel removal" of an
alien who is "inadmissible or deportable" due to a conviction
for a crime involving moral turpitude. See 8 U.S.C.
§ 1229b(b)(1)(C). Further, an alien is "ineligible to receive
visas and ineligible to be admitted to the United States" if
"convicted of . . . a crime involving moral turpitude . . . ."
8 U.S.C. § 1182(a)(2)(A)(i)(I).
¶37 However, the Immigration and Nationality Act, which
includes those statutory provisions, does not define "crime
involving moral turpitude." See Padilla, 559 U.S. at 361; id.
at 377-78 (Alito, J., concurring). The Code of Federal
Regulations also does not define that term. Garcia v. State,
425 S.W.3d 248, 260 (Tenn. 2013) ("[A] crime involving moral
turpitude is nowhere defined in the [Immigration and
Nationality] Act or in the Code of Federal Regulations."). The
Immigration and Nationality Act does not even list examples of
crimes involving moral turpitude. Lopez-Penaloza v. State, 804
10
"The term 'alien' means any person not a citizen or
national of the United States." 8 U.S.C. § 1101(a)(3).
19
No. 2013AP2435-CR
N.W.2d 537, 544 (Iowa Ct. App. 2011) ("The [Immigration and
Nationality Act] does not define the term 'moral turpitude' or
list [crimes involving moral turpitude].").
¶38 Thus, because the term "crime involving moral
turpitude" is undefined in the immigration statutes, we will
consider case law that defines this term. We need to determine
whether immigration law is succinct, clear, and explicit such
that Ortiz-Mondragon's counsel was deficient for failing to
discover that the substantial battery offense was a crime
involving moral turpitude and advise Ortiz-Mondragon to that
effect. Because we conclude that immigration law is not
succinct, clear, and explicit in this case, counsel was not
deficient for not giving further immigration advice to Ortiz-
Mondragon. In order to explain how immigration law is not
succinct, clear, and explicit in this case, we will discuss
cases wherein the subject of the dispute was whether a
particular crime qualified as a crime involving moral turpitude.
One important difference between the cases we will discuss and
the case at issue is that the analysis in those cases concerned
appeals from actual deportation proceedings. The dispute in
those cases was not whether counsel was ineffective for failing
to discover and then advise that a specific crime involved moral
turpitude.
¶39 Even the case law that analyzes whether a crime
qualified as a crime involving moral turpitude for purposes of
deportation often uses terms of generality, not specifics.
"[T]he phrase 'crime involving moral turpitude' is notoriously
20
No. 2013AP2435-CR
baffling . . . ." Garcia-Meza v. Mukasey, 516 F.3d 535, 536
(7th Cir. 2008)." "As a general rule, a crime involves 'moral
turpitude' if it is inherently base, vile, or depraved, and
contrary to the accepted rules of morality and the duties owed
between persons or to society in general." In re Sanudo, 23
I. & N. Dec. 968, 970 (BIA 2006) (emphasis added); see also
Garcia-Meza, 516 F.3d at 536. The term "crime involving moral
turpitude" "generally refers to acts that are per se morally
reprehensible and intrinsically wrong." In re Solon, 24 I. & N.
Dec. 239, 240 (BIA 2007) (emphasis added) (citing Rodriguez v.
Gonzales, 451 F.3d 60, 63 (2d Cir. 2006)). The United States
Court of Appeals for the Seventh Circuit has "put [its] own
gloss on the term," "stating that crimes of moral turpitude are
usually serious crimes (in terms of the magnitude of the loss
they cause or the indignation in the public they arouse) that
are committed deliberately." Garcia-Meza, 516 F.3d at 536(emphasis added). Thus, even in deportation proceedings
themselves, the issue of what constitutes a crime involving
moral turpitude is frequently litigated as it is often less than
clear.
¶40 Even in deportation proceeding cases where the subject
of the litigation is whether a crime qualifies as a crime
involving moral turpitude, "[n]either the seriousness of the
underlying offense nor the severity of the punishment imposed is
determinative of whether a crime involves moral turpitude."
Solon, 24 I. & N. Dec. at 240 (citing In re Serna, 20 I. & N.
Dec. 579, 581 (BIA 1992)). "[A]t least in the context of
21
No. 2013AP2435-CR
assault crimes, a finding of moral turpitude involves an
assessment of both the state of mind and the level of harm
required to complete the offense." Id. at 243. "Thus,
intentional conduct resulting in a meaningful level of harm,
which must be more than mere offensive touching, may be
considered morally turpitudinous." Id. (emphasis added).
¶41 In addition to the fact that the amorphous term "crime
involving moral turpitude" is not defined, it is even more
problematic to ascertain whether a particular crime would
qualify as a crime involving moral turpitude. Padilla, 559 U.S.
at 378 (Alito, J., concurring) ("As has been widely
acknowledged, determining whether a particular crime is . . . a
'crime involving moral turpitude [(CIMT)]' is not an easy
task."). Even courts confronted with analyzing crimes involving
moral turpitude in deportation proceedings are not uniform in
their analysis of whether a crime qualified as a crime involving
moral turpitude. Five federal circuit courts of appeals apply a
two-step test consisting of a "categorical approach" and
"modified categorical approach."11 Two other circuits follow a
three-step test for determining whether a crime qualifies as a
11
See Silva-Trevino v. Holder, 742 F.3d 197, 200 & n.1 (5th
Cir. 2014); Olivas-Motta v. Holder, 746 F.3d 907, 911-16 (9th
Cir. 2013) (amended opinion); Prudencio v. Holder, 669 F.3d 472,
480-84 (4th Cir. 2012); Fajardo v. U.S. Att'y Gen., 659 F.3d
1303, 1307-11 (11th Cir. 2011); Jean-Louis v. Att'y Gen. of
United States, 582 F.3d 462, 472-82 (3d Cir. 2009).
22
No. 2013AP2435-CR
crime involving moral turpitude.12 In the wake of Descamps v.
United States, how federal courts will determine whether a crime
qualifies as a crime involving moral turpitude is unclear. See
Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 282
(2013) (holding "that sentencing courts may not apply the
modified categorical approach when the crime of which the
defendant was convicted has a single, indivisible set of
elements"); id. at 2288-89 (holding that under the modified
categorical approach, a court may rely on "only
facts . . . constituting elements of the offense," rather than
"rely[ing] on its own finding about a non-elemental fact").
Thus, relevant immigration law is far from succinct, clear, and
explicit as to what constitutes a crime involving moral
turpitude. See State v. Telford, 22 A.3d 43, 49-50 (N.J. App.
Div. 2011) (holding that immigration law was not succinct,
clear, and explicit because of a circuit split "surrounding the
type of analysis that would be undertaken by the tribunals
charged with determining whether a noncitizen has committed an
aggravated felony").
12
See Bobadilla v. Holder, 679 F.3d 1052, 1057 (8th Cir.
2012); Mata-Guerrero v. Holder, 627 F.3d 256, 260 (7th Cir.
2010). For a discussion of the categorical approach and
modified categorical approach, see Descamps v. United States,
570 U.S. ___, 133 S. Ct. 2276, 2281-82 (2013). For a discussion
of the two- and three-step tests, see In re Silva-Trevino, 26
I. & N. Dec. 550, 550-51 (A.G. 2015); Maria Theresa Baldini-
Potermin, Defending Non-Citizens in Illinois, Indiana, and
Wisconsin 3-5 to 3-9 (2009), available at
https://www.immigrantjustice.org/defendersmanual.
23
No. 2013AP2435-CR
¶42 In addition to that circuit split, the United States
Attorney General has added to the complexity of determining
whether a crime will qualify as a crime involving moral
turpitude. In 2008 the United States Attorney General adopted
the three-step test for the Board of Immigration Appeals.13 In
re Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008). However, on
April 10, 2015, the Attorney General issued an opinion vacating
his In re Silva-Trevino opinion in its entirety. In re Silva-
Trevino, 26 I. & N. Dec. 550, 550, 554 (A.G. 2015). That 2015
opinion seemingly leaves unresolved how the Board of Immigration
Appeals should determine whether a crime will qualify as a crime
involving moral turpitude. That opinion stated that
the Board may address, in this case and other cases as
appropriate, the following issues:
1. How adjudicators are to determine whether a
particular criminal offense is a crime involving moral
turpitude under the Act;
2. When, and to what extent, adjudicators may
use a modified categorical approach and consider a
record of conviction in determining whether an alien
has been "convicted of . . . a crime involving moral
turpitude" . . . .
Id., 26 I. & N. Dec. at 553.
¶43 In her comprehensive guide on the immigration
consequences of convictions, Maria Theresa Baldini-Potermin
wrote in 2009 that "[t]he current state of the case law for
13
The Board of Immigration Appeals is an administrative
appellate body within the United States Department of Justice.
24
No. 2013AP2435-CR
crimes involving moral turpitude is presently in a state of
flux . . . ." Maria Theresa Baldini-Potermin, Defending Non-
Citizens in Illinois, Indiana, and Wisconsin 3-5 (2009),
available at https://www.immigrantjustice.org/defendersmanual.
¶44 Recognizing this lack of clarity, the State argues
that, "[w]hile Ortiz-Mondragon's conviction may well qualify as
a crime of moral turpitude, that conclusion is not 'clear and
certain' or 'succinct and straightforward.'" The State notes
that case law has held that domestic battery is not necessarily
a crime involving moral turpitude. The State argues that the
relevant case law and the circuit split regarding the two- or
three-step test "illustrate the complexity of deciphering
whether a given offense is a crime involving moral turpitude."
Thus, because Ortiz-Mondragon's conviction does not clearly
constitute a crime involving moral turpitude, the State contends
"that Ortiz-Mondragon's trial attorney was required to do no
more than advise him that his plea 'may carry a risk of adverse
immigration consequences.'" Padilla, 559 U.S. at 369.
¶45 Despite the lack of any clear guidance by statute or
jurisprudence regarding whether a particular crime qualifies as
a crime involving moral turpitude, Ortiz-Mondragon argues that
federal law is "succinct" and "straightforward" in providing
that his substantial battery was a crime involving moral
turpitude such that his counsel should have given him different
advice. He contends that "[s]ome crimes, such as substantial
battery, domestic abuse, are universally treated as [crimes
involving moral turpitude] . . . ." In both of his briefs to
25
No. 2013AP2435-CR
this court, he provides string cites to several cases that,
according to him, support that conclusion.14 He argues that this
court can determine that his substantial battery was a crime
involving moral turpitude simply by looking at Wis. Stat.
§ 940.19(2) and the case law addressing "similar offenses."
¶46 For example, Ortiz-Mondragon relies on two spousal
abuse deportation cases arising from California: Grageda v. U.S.
I.N.S., 12 F.3d 919 (9th Cir. 1993), superseded by statute on
other grounds, and In re Tran, 21 I. & N. Dec. 291 (BIA 1996).
In Grageda the Ninth Circuit held "that spousal abuse under
[California Penal Code] section 273.5(a) is a crime of moral
turpitude." Grageda, 12 F.3d at 922. In In re Tran the Board
of Immigration Appeals expanded the holding in Grageda and
concluded "that any violation of section 273.5(a) of the
California Penal Code constitutes a crime involving moral
turpitude." In re Tran, 21 I. & N. Dec. at 294. However, the
14
Ortiz-Mondragon also relies on publications that do not
have the force of law. For example, he cites to the Immigrant
Defense Project's Immigration Consequences of Convictions
Summary Checklist, which states that crimes involving moral
turpitude "includ[e]" "[c]rimes in which bodily harm is caused
or threatened by an intentional act, or serious bodily harm is
caused or threatened by a reckless act . . . ." However, that
checklist does not cite to legal authority for that proposition
and does not state that such crimes necessarily are crimes
involving moral turpitude. To the contrary, such crimes may be
considered crimes involving moral turpitude. See In re Solon,
24 I. & N. Dec. 239, 243 (BIA 2007) ("[I]ntentional conduct
resulting in a meaningful level of harm, which must be more than
mere offensive touching, may be considered morally
turpitudinous.").
26
No. 2013AP2435-CR
Ninth Circuit in Grageda explained that its holding was limited
to spousal abuse and did not include abuse of a cohabitant.15
Grageda, 12 F.3d at 921-22 n.1.
¶47 In a subsequent decision, the Ninth Circuit recognized
the narrow holding of Grageda and concluded that a "conviction
under Cal. Penal Code § 273.5(a) for abuse of a cohabitant is
not categorically a [crime involving moral turpitude]."
Morales-Garcia v. Holder, 567 F.3d 1058, 1064-67 (9th Cir.
2009).16 In Morales-Garcia the Ninth Circuit expressly declined
to follow In re Tran. Id. at 1066 & n.4. Accordingly, it is
unclear whether abuse of a cohabitant, in violation of Cal.
15
The Ninth Circuit's holding in Grageda may be limited to
spousal abuse that willfully causes a "traumatic condition."
See Morales-Garcia v. Holder, 567 F.3d 1058, 1065 (9th Cir.
2009) (quoting Grageda v. U.S. I.N.S., 12 F.3d 919, 922 (9th
Cir. 1993)) (internal quotation marks omitted) ("In Grageda, for
example, we held that 'when a person willfully beats his or her
spouse severely enough to cause a traumatic condition, he or she
has committed an act of baseness or depravity contrary to
accepted moral standards.'"). Ortiz-Mondragon does not discuss
whether substantial battery under Wis. Stat. § 940.19(2)
involves the willful infliction of a traumatic condition.
16
In Morales-Garcia the Ninth Circuit held that abuse of a
cohabitant is not necessarily a crime involving moral turpitude
because not all cohabitants "are committed to, trust, or depend
upon each other." Morales-Garcia, 567 F.3d at 1066. If
cohabitants are not committed to such a relationship, then their
status as cohabitants does not transform a battery offense into
a crime involving moral turpitude. See id. But if cohabitants
are committed to such a relationship, then their status as
cohabitants "may transform" a battery offense into a crime
involving moral turpitude. See id. at 1065 ("Otherwise non-
morally turpitudinous conduct targeted at a victim with whom the
defendant has a special relationship may transform a crime into
one involving moral turpitude.").
27
No. 2013AP2435-CR
Penal Code § 273.5(a), is a crime involving moral turpitude. In
the present case, Ortiz-Mondragon was convicted for battering
his cohabiting girlfriend, not a spouse.
¶48 Furthermore, Ortiz-Mondragon's substantial battery
conviction was under a Wisconsin statute, not a California
statute. Because the cases cited by Ortiz-Mondragon do not
discuss whether substantial battery under Wis. Stat. § 940.19(2)
is a crime involving moral turpitude, those cases do not
succinctly, clearly, and explicitly demonstrate that Ortiz-
Mondragon's substantial battery under § 940.19(2) was a crime
involving moral turpitude. See Garcia, 425 S.W.3d at 260-61
(holding that immigration law was not "clear, succinct, and
straightforward" partly because the defendant "provided no
federal judicial or administrative decision considering whether
the Tennessee offenses to which he pleaded guilty amount to
crimes involving moral turpitude, although the [defendant] has
cited court decisions classifying abuse offenses in other
jurisdictions as crimes involving moral turpitude"). Thus,
Grageda and In re Tran do not succinctly, clearly, and
explicitly demonstrate that Ortiz-Mondragon's substantial
battery was a crime involving moral turpitude.
¶49 Ortiz-Mondragon also relies on cases in which courts
held that aggravated assault of a peace officer and aggravated
child abuse were crimes that qualified as crimes involving moral
turpitude. See In re Danesh, 19 I. & N. Dec. 669, 673 (BIA
1988) (aggravated assault of peace officer); Garcia v. Attorney
Gen. of United States, 329 F.3d 1217, 1222 (11th Cir. 2003)
28
No. 2013AP2435-CR
(aggravated child abuse). However, as Morales-Garcia
demonstrates, it is not safe to assume that Ortiz-Mondragon's
substantial battery of his cohabiting girlfriend is necessarily
a crime involving moral turpitude simply because aggravated
assault of a peace officer and aggravated child abuse qualify as
crimes involving moral turpitude. See Morales-Garcia, 567 F.3d
at 1064-67 (holding that abuse of a cohabitant is not
necessarily a crime involving moral turpitude, although spousal
abuse contrary to California law necessarily is).
¶50 As the Board of Immigration Appeals has explained, "it
has often been found that moral turpitude necessarily inheres in
assault and battery offenses that are defined by reference to
the infliction of bodily harm upon a person whom society views
as deserving of special protection, such as . . . a domestic
partner . . . ." Sanudo, 23 I. & N. Dec. at 971-72 (emphasis
added) (citations omitted). However, such crimes do not
categorically qualify as a crime involving moral turpitude. See
id. Rather, "a case-by-case approach has been employed to
decide whether battery (or assault and battery) offenses involve
moral turpitude." Id. at 971. Thus, the State's argument that,
"[w]hile Ortiz-Mondragon's conviction may well qualify as a
crime of moral turpitude, that conclusion is not 'clear and
certain' or 'succinct and straightforward,'" is correct.17
17
Ortiz-Mondragon argues that if the case law on which he
relies does not succinctly, clearly, and explicitly indicate
that his substantial battery was a crime involving moral
turpitude, then this court should look to his record of
conviction, including the criminal complaint and plea hearing
(continued)
29
No. 2013AP2435-CR
¶51 Based on the foregoing discussion, we conclude that
federal immigration law does not succinctly, clearly, and
explicitly provide that Ortiz-Mondragon's substantial battery
was a crime involving moral turpitude such that his counsel's
advice should have been different. The methodology for
determining whether a crime qualifies as a crime involving moral
turpitude varies by jurisdiction and is in a "state of flux."
transcript. In other words, he argues that this court should
proceed to the second step of the two- or three-step test for
determining whether a crime qualified as a crime involving moral
turpitude. However, when determining whether a crime qualifies
as a crime involving moral turpitude, a court looks to a record
of conviction only if the statute of conviction is "divisible"——
that is, only if the statute "includes some offenses which
involve moral turpitude and some which do not." In re Short, 20
I. & N. Dec. 136, 137-38 (BIA 1989) (citations omitted) ("Only
where the statute under which the respondent was convicted
includes some offenses which involve moral turpitude and some
which do not do we look to the record of conviction . . . .").
Because Ortiz-Mondragon does not argue that Wis. Stat.
§ 940.19(2) is divisible, his record of conviction will not help
to determine whether his substantial battery qualified as a
crime involving moral turpitude.
Further, Ortiz-Mondragon does not explain how the relevant
immigration law would be succinct, clear, and explicit if one
must consult a record of conviction under the two- or three-step
test in order to determine whether a crime qualified as a crime
involving moral turpitude. See State v. Telford, 22 A.3d 43, 50
(N.J. App. Div. 2011) (stating that an attorney "would be hard-
pressed to provide any clear advice regarding the deportation
consequences of a guilty plea" if the immigration advice could
"turn on the precise wording of the indictment"). See also
Garcia v. State, 425 S.W.3d 248, 260-61 (Tenn. 2013) (holding
that immigration law did not succinctly, clearly, and explicitly
provide that the defendant's conviction qualified as a crime
involving moral turpitude); Lopez-Penaloza v. State, 804 N.W.2d
537, 545-46 (Iowa Ct. App. 2011) (same).
30
No. 2013AP2435-CR
Baldini-Potermin, supra, 3-5; Telford, 22 A.3d at 49-50 (holding
that a federal circuit split made the relevant immigration law
not succinct, clear, and explicit). The cases that Ortiz-
Mondragon cites fail to provide a succinct, clear, and explicit
answer as to whether Ortiz-Mondragon's substantial battery
qualified as a crime involving moral turpitude. Accordingly,
his trial counsel "need[ed] [to] do no more than advise [him]
that pending criminal charges may carry a risk of adverse
immigration consequences." Padilla, 559 U.S. at 369. We now
consider whether his counsel performed deficiently under
Padilla.
B. Whether Ortiz-Mondragon's Trial Counsel
Performed Deficiently
¶52 "To demonstrate deficient performance, the defendant
must show that his counsel's representation 'fell below an
objective standard of reasonableness' considering all the
circumstances." Carter, 324 Wis. 2d 640, ¶22 (quoting
Strickland, 466 U.S. at 688). "In evaluating the reasonableness
of counsel's performance, this court must be 'highly
deferential.'" Id. (quoting Strickland, 466 U.S. at 689).
"Counsel enjoys a 'strong presumption' that his conduct 'falls
within the wide range of reasonable professional assistance.'"
Id. (quoting Strickland, 466 U.S. at 689). "Indeed, counsel's
performance need not be perfect, nor even very good, to be
constitutionally adequate." Id. (citing Thiel, 264
Wis. 2d 571, ¶19).
31
No. 2013AP2435-CR
¶53 Ortiz-Mondragon argues that his trial counsel,
Attorney Singh, performed deficiently by failing to advise him
that his conviction for substantial battery would necessarily
result in his deportation and permanent exclusion from the
United States. Ortiz-Mondragon concedes that "the circuit
[court] found that the record affirmatively demonstrated that
Mr. Ortiz-Mondragon received advice about the immigration
consequences of his plea in the form of the general warnings
contained in the plea questionnaire form as well as the circuit
court's statutory warnings." However, he argues that the
circuit court's statutory warning and the plea questionnaire are
"insufficient" "substitute[s] for the advice of counsel."
¶54 Ortiz-Mondragon further argues that his trial counsel
performed deficiently by failing to research the relevant
immigration law and Ortiz-Mondragon's immigration status. He
argues that "the record contains no evidence that defense
counsel investigated Mr. Ortiz-Mondragon's immigration status or
relevant law." He contends that "[e]ven when a more general
warning is warranted, counsel must reasonably investigate the
potential immigration consequences in light of the particular
facts of the case because counsel cannot determine the clarity
of a consequence without some investigation and research." He
further argues that "[c]ounsel's failure to inform a defendant
of the adverse immigration consequences when legal research
would show that the crimes at issue involved moral turpitude for
immigration purposes falls below an objective standard of
reasonableness."
32
No. 2013AP2435-CR
¶55 The State argues that, because the immigration
consequences of the plea agreement were not succinct, clear, and
explict, "Ortiz-Mondragon's trial attorney was required to do no
more than advise him that his plea 'may carry a risk of adverse
immigration consequences.'" Padilla, 559 U.S. at 369. The
State contends that "[t]he court should also uphold the circuit
court's finding that Ortiz-Mondragon did, in fact, receive such
a warning." The State does not separately address Ortiz-
Mondragon's argument that his attorney failed to adequately
research his immigration status or the immigration consequences
of the plea agreement.
¶56 We will first determine whether Ortiz-Mondragon's
trial counsel, Attorney Singh, performed deficiently by giving
incorrect advice. We will next determine whether Attorney Singh
performed deficiently by failing to adequately research the
immigration consequences of the plea agreement.
¶57 The record in the circuit court demonstrates that
Ortiz-Mondragon knowingly, intelligently, and voluntarily made
no-contest pleas to the subject charges. The record further
demonstrates that he knew he faced a risk of deportation and
exclusion if he entered a no-contest plea to substantial
battery. Not only does the record reveal that there were
serious known concerns regarding an ongoing Immigration and
Customs Enforcement hold, but despite that, Ortiz-Mondragon
discussed this case with counsel, accepted the State's plea
bargain, signed a plea questionnaire, and knowingly,
intelligently, and voluntarily pled in the circuit court.
33
No. 2013AP2435-CR
Specifically, his counsel, Attorney Singh, had "presented" the
State's plea offer to him, "given him paperwork to use to study
it, [and] given him information to use in counseling . . . ."
Attorney Singh and the plea questionnaire both informed Ortiz-
Mondragon that the "plea could result in deportation, the
exclusion of admission to this country, or the denial of
naturalization under federal law." The circuit court advised
Ortiz-Mondragon: "If you're not a citizen of the United States,
the plea you offer me could result in your deportation, the
exclusion of admission, or the denial of naturalization under
federal law." Ortiz-Mondragon's girlfriend stated that he and
she were trying to keep their family together "in the states,
but if he ends up with a felony charge, that's not going to
happen." Ortiz-Mondragon himself stated that he carefully read
the plea questionnaire and discussed it with his attorney before
he signed it. Ortiz-Mondragon also stated that he understood
the circuit court's immigration warning and wished to enter his
no-contest pleas. All of these factors militate against the
arguments that Ortiz-Mondragon makes today.
¶58 Moreover, when Ortiz-Mondragon filed a motion to
withdraw his plea and request a Machner hearing, the circuit
court correctly concluded that his motion did not warrant a
hearing. While it is a defendant's burden to demonstrate that
he is entitled to a Machner hearing by alleging sufficient facts
to raise a question of fact, the circuit court correctly
concluded that Ortiz-Mondragon's proffer was insufficient to
warrant a Machner hearing. In fact, the circuit court concluded
34
No. 2013AP2435-CR
that, "[u]nder the circumstances, [Ortiz-Mondragon] has not
stated sufficient facts which entitle him to a hearing on his
postconviction motion. The facts, as alleged, demonstrate that
[Ortiz-Mondragon's] counsel did not perform deficiently by
providing [Ortiz-Mondragon] with equivocal, rather than
unequivocal, advice regarding the immigration-related
consequences of his plea." It is well-established that a
"circuit court has the discretion to deny the postconviction
motion without a Machner hearing 'if the motion fails to allege
sufficient facts to raise a question of fact, presents only
conclusory allegations, or if the record conclusively
demonstrates that the defendant is not entitled to relief.'"
State v. Roberson, 2006 WI 80, ¶43, 292 Wis. 2d 280, 717
N.W.2d 111 (emphasis added in Roberson) (quoting State v.
Curtis, 218 Wis. 2d 550, 555 n. 3, 582 N.W.2d 409 (Ct. App.
1998)).
¶59 In its order denying Ortiz-Mondragon's request for a
Machner hearing and his motion to withdraw his plea, the circuit
court found that "the record affirmatively establishes that
trial counsel did so advise him" that "'pending criminal charges
may carry a risk of adverse immigration consequences.'" This
finding is not clearly erroneous.18 The court noted that Ortiz-
18
"Facts which are stated in a trial court's memorandum
decision will be accorded the same weight as if they had been
contained in formal findings." Lambert v. Wrensch, 135
Wis. 2d 105, 114-15, 399 N.W.2d 369 (1987) (citing Hochguertel
v. San Felippo, 78 Wis. 2d 70, 86, 253 N.W.2d 526 (1977)).
35
No. 2013AP2435-CR
Mondragon conceded "that he was given equivocal immigration
warnings by both the Court, as required by [Wis. Stat.
§] 971.08, and the Plea Questionnaire/Waiver of Rights form."
The circuit court also noted that, at the plea and sentencing
hearing, "[Ortiz-Mondragon] confirmed with the [c]ourt that he
read [the plea questionnaire] over carefully before signing it
and had the opportunity to fully discuss it with his attorney."
The circuit court further noted that Attorney Singh signed the
plea questionnaire, thereby affirming that he discussed it with
Ortiz-Mondragon and that he believed Ortiz-Mondragon understood
it and the plea agreement.
¶60 The immigration advice that Ortiz-Mondragon received
stands in stark contrast to the incorrect immigration advice
that was given in Padilla. In contrast to the present case, the
immigration law in Padilla was "succinct, clear, and explicit"
in providing that Padilla's conviction made him "eligible for
deportation." Padilla, 559 U.S. at 368. Thus, Padilla's
attorney was required to do more than advise him that his
conviction may carry a risk of adverse immigration consequences.
Id. at 369. But "Padilla's counsel provided him false assurance
that his conviction would not result in his removal from this
country." Id. at 368. That "advice was incorrect." Id. at
369. By contrast, the advice that Ortiz-Mondragon received was
correct.
¶61 In fact, had Attorney Singh given the immigration
advice that Ortiz-Mondragon argues he should have given, he may
well have given incorrect advice. Because federal immigration
36
No. 2013AP2435-CR
law does not succinctly, clearly, and explicitly provide that
Ortiz-Mondragon's substantial battery was a crime involving
moral turpitude, it may well have been inaccurate for Attorney
Singh to unequivocally tell Ortiz-Mondragon that the immigration
authorities would determine that his substantial battery was a
crime involving moral turpitude. Accordingly, it also may well
have been inaccurate for Attorney Singh to unequivocally tell
Ortiz-Mondragon that he would be deportable and inadmissible to
the United States on grounds of moral turpitude if convicted of
substantial battery.
¶62 We note that incorrect advice that a plea will result
in deportation or exclusion, like incorrect advice that a plea
will not result in deportation or exclusion, could impact an
alien defendant's decisionmaking. The former kind of
misinformation might encourage a defendant to reject a
beneficial plea offer and thereby subject him or herself to
significantly more exposure. The latter kind of misinformation
could cause a defendant to be surprised with the actual
immigration consequences. Counsel should give accurate advice.
Counsel should avoid overstating or understating the possible
immigration consequences of a conviction. Ortiz-Mondragon's
position, if adopted, would require more of an attorney than is
required under Padilla because it is not succinct, clear, and
explicit that Ortiz-Mondragon's substantial battery is a crime
involving moral turpitude.19
19
Case law demonstrates that even if immigration
(continued)
37
No. 2013AP2435-CR
¶63 In sum, we conclude that Ortiz-Mondragon's trial
counsel did not perform deficiently by advising him that the
plea agreement "could result in deportation, the exclusion of
admission to this country, or the denial of naturalization under
federal law." That warning was correct and adequate under
Padilla because it informed Ortiz-Mondragon that a conviction
may carry a risk of adverse immigration consequences.
¶64 We turn briefly to Ortiz-Mondragon's argument that his
attorney performed deficiently by failing to perform an adequate
amount of research. Contrary to Ortiz-Mondragon's assertion,
the record contains evidence that Attorney Singh researched
Ortiz-Mondragon's immigration status and relevant immigration
law. For example, at the plea and sentencing hearing, the
circuit court asked Ortiz-Mondragon's attorney, Attorney Singh,
whether Ortiz-Mondragon had an Immigration and Customs
Enforcement hold. Attorney Singh stated that "I think there is,
but the information I get is secondhand," indicating that
Attorney Singh had conducted some research into the matter.
Further, at the plea and sentencing hearing, Attorney Singh
informed the court that he had "presented" the State's plea
proceedings were commenced against Ortiz-Mondragon for the
substantial battery being a crime involving moral turpitude,
whether his substantial battery would qualify as a deportable
offense could be, and likely would be, contested in those
proceedings. See Abdelqadar v. Gonzales, 413 F.3d 668, 673-74
(7th Cir. 2005) (holding that an alien was not deportable under
8 U.S.C. § 1227(a)(2)(A)(i) because his crime involving moral
turpitude occurred more than five years after he initially
entered the United States).
38
No. 2013AP2435-CR
offer to Ortiz-Mondragon, "given him paperwork to use to study
it, [and] given him information to use in counseling . . . ."
Immediately thereafter, Attorney Singh handed a signed plea
questionnaire and waiver of rights form, along with "some other
papers," to the court.
¶65 Because the record provides evidence that Ortiz-
Mondragon's attorney did some level of research regarding the
immigration consequences of the plea agreement, we turn now to
Ortiz-Mondragon's argument that his attorney was deficient for
failing to perform additional research. Ortiz-Mondragon argues
that additional research would have revealed that his
substantial battery is a crime involving moral turpitude. Ortiz-
Mondragon relies on Commonwealth v. Balthazar, 16 N.E.3d 1143(Mass. App. Ct. 2014), and Montes-Flores v. United States, No.
2:11-CR-032-JMS-CMM, 2013 WL 428024 (S.D. Ind. Feb. 4, 2013).
¶66 In Balthazar the defendant moved to withdraw his
guilty pleas to larceny and malicious destruction of property
after the Immigration and Naturalization Service began
deportation proceedings against him as a result of the
convictions. Commonwealth v. Balthazar, 16 N.E.3d 1143, 1145 &
n.3 (Mass. App. Ct. 2014). He alleged that he received
ineffective assistance of counsel when his attorney told him
that he would not be deported because the charges had been
reduced to misdemeanors. Id. at 1145, 1147. The Massachusetts
Appeals Court held that, "[a]s legal research would have
indicated that the crimes were ones involving moral turpitude,
we must conclude . . . that counsel's failure to inform the
39
No. 2013AP2435-CR
defendant that pleading guilty to the charges would subject him
to presumptively mandatory deportation fell below an objective
standard of reasonableness." Id. at 1147-48.
¶67 In Montes-Flores the defendant pled guilty to making a
material false statement in violation of 18 U.S.C. § 1001(a)(2).
Montes-Flores v. United States, No. 2:11-CR-032-JMS-CMM, 2013 WL
428024, at *1-2 (S.D. Ind. Feb. 4, 2013). Prior to the plea,
her attorney "'told her that it was possible that she could face
deportation but that it will be up to the immigration judge to
decide.'" Id. at *3. The federal district court granted the
defendant's post-sentencing motion to withdraw her plea on
grounds of ineffective assistance of counsel. Id. at *2, *4-5.
The court held that the attorney's immigration advice was
deficient because, "[w]hile crimes of 'moral turpitude' are not
specifically defined in the statute, the Seventh Circuit has
repeatedly held that '[t]here can be no question that a
violation of [18 U.S.C. §] 1001 is a crime involving moral
turpitude.'" Id. at *4 (emphases added) (internal citation
omitted) (quoting Ghani v. Holder, 557 F.3d 836, 840 (7th Cir.
2009)) (citing Benaouicha v. Holder, 600 F.3d 795, 797 (7th Cir.
2010)). Thus, "counsel's failure to inform Montes–Flores that a
conviction under § 1001 would result in presumptively mandatory
deportation was objectively unreasonable." Id. at *5. The
court further held that the deficient performance prejudiced the
defendant. Id. at *6.
¶68 Balthazar and Montes-Flores are distinguishable.
Unlike in those cases, additional research in the present case
40
No. 2013AP2435-CR
would not have revealed that the crime at issue clearly
qualified as a crime involving moral turpitude. Thus, even had
Attorney Singh performed additional research, his immigration
advice would not have changed. As we explained earlier, federal
immigration law does not succinctly, clearly, and explicitly
provide that Ortiz-Mondragon's substantial battery is
necessarily a crime involving moral turpitude. This lack of
clarity presents a far different situation than that in
Balthazar and Montes-Flores. Unlike the defendant in Montes-
Flores, Ortiz-Mondragon has not shown that the Seventh Circuit
has "repeatedly held" that there can be "no question" that his
conviction was for a crime involving moral turpitude.20 See
20
Although not cited by Ortiz-Mondragon, we recognize that
in some Seventh Circuit deportation cases the defendant conceded
that his domestic battery qualified as a crime involving moral
turpitude. See Coyomani-Cielo v. Holder, 758 F.3d 908, 910-11
(7th Cir. 2014) (noting that, after an immigration judge
determined that the defendant was removable because his domestic
battery "qualifies as a [crime involving moral turpitude]" and
"'an aggravated felony,'" the defendant argued that "he is
subject [to removal] only" for committing a crime involving
moral turpitude but that "he might be eligible for cancellation
of removal"); Castellanos v. Holder, 652 F.3d 762, 764 (7th Cir.
2011) (noting that the defendant "denied that he committed an
aggravated felony or a crime of domestic violence, but conceded
that he was removable as an alien convicted of two crimes
involving moral turpitude"); Benaouicha v. Holder, 600 F.3d 795,
798 (7th Cir. 2010) (noting that the defendant "conceded that he
is deportable under [8 U.S.C. §] 1227(a)(2)(A)(i) for having
been convicted of a crime of moral turpitude"). The Seventh
Circuit in those cases did not hold that the domestic battery
crimes at issue qualified as crimes involving moral turpitude.
Further, the defendants in those cases were convicted for
domestic battery under Illinois and Indiana statutes, not Wis.
Stat. § 940.19(2). Thus, those cases do not succinctly, clearly,
and explicitly demonstrate that Ortiz-Mondragon's substantial
(continued)
41
No. 2013AP2435-CR
Montes-Flores, 2013 WL 428024, at *4. Although the circuit
court did not make specific findings with respect to what
research Attorney Singh performed and which paperwork he
provided to the court and Ortiz-Mondragon, we can infer that the
circuit court implicitly found that Attorney Singh performed an
adequate amount of research. See State v. Hubanks, 173
Wis. 2d 1, 27, 496 N.W.2d 96 (Ct. App. 1992) (citation omitted)
("The [circuit] court found that Hubanks had not been denied
effective assistance of counsel. Although the [circuit] court
did not make specific findings of fact, we may assume on appeal
that such findings of fact were made implicitly in favor of its
decision."). Accordingly, unlike defense counsel in Balthazar
and Montes-Flores, Attorney Singh was not deficient for failing
to perform additional legal research, which would not have
changed his immigration advice.
¶69 We conclude that the immigration advice that Attorney
Singh provided to Ortiz-Mondragon was sufficient under Padilla.
Because the law is not "succinct, clear, and explicit" with
respect to whether Ortiz-Mondragon's substantial battery was a
crime involving moral turpitude, his trial counsel "need[ed]
[to] do no more than advise [him] that pending criminal charges
may carry a risk of adverse immigration consequences." See
Padilla, 559 U.S. at 369 (emphases added). Counsel met that
requirement by advising Ortiz-Mondragon that the "plea could
battery under § 940.19(2) was a crime involving moral turpitude.
See supra ¶48.
42
No. 2013AP2435-CR
result in deportation, the exclusion of admission to this
country, or the denial of naturalization under federal law."
See Garcia, 425 S.W.3d at 260-61 (holding that, because the
defendant's crimes did not clearly qualify as crimes involving
moral turpitude, counsel gave adequate advice by stating that
the guilty pleas "might or might not have an adverse affect on
his ability to return legally to the United States"); Lopez-
Penaloza, 804 N.W.2d at 546 (holding that, because the
defendant's crime did not clearly qualify as a crime involving
moral turpitude, counsel gave adequate advice by stating "'that
a criminal conviction, deferred judgment, or deferred sentence
may affect [her] status under federal immigration laws'").
IV. CONCLUSION
¶70 We conclude that 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." See Padilla, 559 U.S. at 369. 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
43
No. 2013AP2435-CR
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 by failing to further
research the immigration consequences of the plea agreement.
Because Ortiz-Mondragon failed to prove deficient performance,
we do not consider the issue of prejudice.
By the Court.—The decision of the court of appeals is
affirmed.
44
No. 2013AP2435-CR.awb
¶71 ANN WALSH BRADLEY, J. (dissenting). This case
represents yet another example of the intersection of state
criminal law with the federal immigration law. It likewise
offers another example of why the mantra of the bar and bench
alike should be: read the relevant statute.
¶72 Had the attorney merely read the governing statute, he
would have discovered that the crime to which Ortiz-Mondragon
pled made him deportable. Aside from the subsection on crimes
involving moral turpitude (CIMTs), the statute has another
subsection clearly rendering noncitizens deportable for a
conviction of domestic violence. 8 U.S.C § 1227(a)(2)(E)(i).
¶73 Because the consequence of a conviction is clear, the
duty to give accurate immigration advice is likewise clear.
Padilla v. Kentucky, 559 U.S. 356, 368 (2010) ("when the
deportation consequence is truly clear, . . . the duty to give
correct advice is equally clear.").
¶74 Nevertheless, the majority essentially ignores the
relevant domestic abuse subsection of the statute and the
attorney's apparent failure to read it, and engages in a lengthy
discussion of CIMTs. Rather than focusing on whether the
specific crime at issue qualifies as a CIMT under the
controlling federal precedent, it focuses instead on whether
there is a clear definition of "crime of moral turpitude" and a
consistent application of the concept across the federal
judicial circuits.
1
No. 2013AP2435-CR.awb
¶75 Because the circuit court denied Ortiz-Mondragon's
motion for postconviction relief without a hearing, it is hard
to know the extent of the information the attorney provided and
his basis for it. The record is wholly insufficient to
determine the merits of the claim. The majority, however,
purports to perform this task, concluding that Ortiz-Mondragon's
claim must fail.
¶76 Padilla's requirement that attorneys inform their
clients of the immigration consequences of entering a plea was
not a mere suggestion. It set the standard for attorney
performance under the Sixth Amendment. Unlike the majority, I
conclude that Ortiz-Mondragon's claim of a Padilla violation
cannot be so quickly brushed aside.
¶77 Because the consequence of deportation is clear under
the subsection on domestic abuse (8 U.S.C. § 1227(a)(2)(E)(i)),
the duty under the Sixth Amendment to give correct advice is
likewise clear. Given that no hearing was held, it is
impossible to know the nature and extent of the advice given to
the defendant. Without a developed record, it is also
impossible to determine whether there was a violation of the
defendant's Sixth Amendment right to effective assistance of
counsel. Accordingly, I would remand to the circuit court for a
Machner hearing.1
1
In State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905(Ct. App. 1979), the court of appeals determined that when a
defendant raises an ineffective assistance of counsel claim a
hearing is necessary to obtain trial counsel's testimony. These
hearings have become known as "Machner hearings."
2
No. 2013AP2435-CR.awb
I
¶78 The majority ignores that had defense counsel done the
bare minimum amount of research and merely read the governing
statute, he would have discovered that the crime to which Ortiz-
Mondragon pled made him deportable. Aside from the subsection
on CIMTs, the statute has another subsection clearly rendering
noncitizens deportable for a conviction of domestic violence: 8
U.S.C. § 1227(a)(2)(E)(i).
¶79 In language that is clear and succinct, that
subsection provides that any noncitizen who at any time after
admission is convicted of a crime of domestic violence is
deportable:
Any alien who at any time after admission is convicted
of a crime of domestic violence, a crime of stalking,
or a crime of child abuse, child neglect, or child
abandonment is deportable.
8 U.S.C. § 1227(a)(2)(E)(i) (emphasis added).
¶80 The subsection further details what qualifies as a
crime of domestic violence:
For purposes of this clause, the term "crime of
domestic violence" means any crime of violence (as
defined in section 16 of Title 18) against a person
committed by a current or former spouse of the person,
by an individual with whom the person shares a child
in common, by an individual who is cohabiting with or
has cohabited with the person as a spouse, by an
individual similarly situated to a spouse of the
person under the domestic or family violence laws of
the jurisdiction where the offense occurs, or by any
other individual against a person who is protected
from that individual's acts under the domestic or
family violence laws of the United States or any
3
No. 2013AP2435-CR.awb
State, Indian tribal government, or unit of local
government.
8 U.S.C. § 1227(a)(2)(E)(i).2
¶81 If there is any doubt about the plain meaning of the
subsection of the statute, it is put to rest by a recent
decision by the United States Supreme Court. In Mellouli v.
Lynch, 135 S. Ct. 1980, 1990 n.11 (June 1, 2015), the Court
described the subsection as "specif[ying] the conduct that
subjects an alien to removal." See also id. at 1992 (Thomas, J.
dissenting) (describing § 1227(a)(2)(E)(i) as "making removable
'[a]ny alien who . . . is convicted of a crime of domestic
violence,' where 'the term "crime of domestic violence" means
any crime of violence . . . committed by' a person with a
specified family relationship with the victim").
¶82 This is in accord with prior circuit court decisions.
See, e.g., Carrillo v. Holder, 781 F.3d 1155 (9th Cir. 2015)
(noncitizen rendered removable due to his domestic violence
conviction); Florez v. Holder, 779 F.3d 207, 209 (2d Cir. 2015)
("8 U.S.C. § 1227(a)(2)(E)(i), [] makes any alien removable if,
2
Section 16 of title 18 defines "crime of violence" as:
(a) an offense that has as an element the use,
attempted use, or threatened use of physical
force against the person or property of another,
or
(b) any other offense that is a felony and that, by
its nature, involves a substantial risk that
physical force against the person or property of
another may be used in the course of committing
the offense.
18 U.S.C. § 16.
4
No. 2013AP2435-CR.awb
'at any time after admission,' the alien 'is convicted of a
crime of domestic violence, a crime of stalking, or a crime of
child abuse, child neglect, or child abandonment.'"); Gonzalez-
Gonzalez v. Ashcroft, 390 F.3d 649, 650 (9th Cir. 2004) ("§ 1227
is titled 'Deportable aliens' and 'Domestic Violence' is listed
as an offense under § 1227(a)(2), which lists criminal grounds
of deportation."); Csekinek v. INS, 391 F.3d 819, 826-827 (6th
Cir. 2004) (observing that 8 U.S.C. § 1227(a)(2)(E)(i) "renders
deportable any alien convicted of a domestic violence offense
after entry into the United States.").3
¶83 Like a conviction for a CIMT, a domestic violence
conviction renders noncitizens ineligible for relief under 8
U.S.C. § 1229b(b). In relevant part, it provides that "The
Attorney General may cancel removal of, and adjust to the status
of an alien lawfully admitted for permanent residence, an alien
who is inadmissible or deportable from the United States if the
alien—— . . . has not been convicted of an offense under section
1182(a)(2), 1227(a)(2), or 1227(a)(3) of this title." 8 U.S.C.
§ 1229b(b)(1). Both CIMTs and crimes of domestic violence are
listed in 8 U.S.C. § 1227(a)(2).
3
Notably, although deportation for CIMTs is limited to
CIMTs "committed within five years (or 10 years in the case of
an alien provided lawful permanent resident status under section
1255(j)) after the date of admission," 8 U.S.C.
§ 1227(a)(2)(A)(i)(I), a conviction for a crime of domestic
violence is not so limited. 8 U.S.C. § 1227(a)(2)(E)(i) states
that a crime of domestic violence occurring at "any time after
admission" will render a noncitizen deportable.
5
No. 2013AP2435-CR.awb
¶84 Fundamental to the practice of law is being familiar
with the relevant statutes. Failure to do so constitutes a
quintessential example of deficient performance. See Hinton v.
Alabama, 134 S. Ct. 1081, 1089 (2014) ("[a]n attorney's
ignorance of a point of law that is fundamental to his case
combined with his failure to perform basic research on that
point is a quintessential example of unreasonable performance
under Strickland.").
¶85 Reading the governing statutes is required by the
prevailing professional norms which, under Strickland, set the
standards for deficient performance. Strickland v. Washington,
466 U.S. 668, 688 (1984) ("[t]he proper measure of attorney
performance remains simply reasonableness under prevailing
professional norms."). For example, Standard 4-6.3(d) of the ABA
Standards for Criminal Justice, Prosecution and Defense
Functions (4th ed. 2015), states that "[d]efense counsel should
investigate and be knowledgeable about sentencing procedures,
law, and alternatives, collateral consequences and likely
outcomes, . . . and advise the client on these topics before
permitting the client to enter a negotiated disposition."
¶86 Likewise, Standard 14-3.2 of the ABA Standards for
Criminal Justice, Pleas of Guilty (3d ed. 1999), requires
attorneys to investigate the law before advising defendants
about pleas. The commentary advises that because the
immigration consequence of a guilty plea may well be a client's
greatest priority, "counsel should be familiar with the basic
immigration consequences that flow from different types of
6
No. 2013AP2435-CR.awb
guilty pleas, and should keep this in mind in investigating law
and fact and advising the client." Id. at 127.
¶87 Here, had defense counsel read the governing statute
he would have been able to provide Ortiz-Mondragon with more
than a general warning.4 Nevertheless, the majority attempts to
circumvent this problem by simply dismissing the domestic abuse
subsection in a footnote. It ignores not only the clear
language of the subsection but also Padilla's clear directive:
attorneys must "provide [their] client[s] with available
advice . . . ." Padilla, 559 U.S. at 371.
II
¶88 Rather than discussing the plain language of the
domestic abuse subsection or focusing on whether the crime at
issue renders Ortiz-Mondragon deportable, the majority takes a
different approach. It discusses the lack of definition of
CIMTs in the immigration statute, that other courts have deemed
the term "crime involving moral turpitude" ambiguous, and that
4
The majority's determination that defense counsel did
adequate research is highly speculative. It refers to defense
counsel's statement that "the information I get is secondhand,"
his statement that he had given Ortiz-Mondragon "paperwork," and
that he handed the signed plea questionnaire and waiver of
rights form, along with "some other papers," to the court. The
majority contends that these facts are evidence that he did
"some level of research." Majority op., ¶64. It then "infer[s]
that the circuit court implicitly found that [defense counsel]
performed an adequate amount of research." Id., ¶68. The
flimsy details that the majority points to say nothing about
what that research was or what the attorney knew. Without a
Machner hearing, this information is unknowable.
7
No. 2013AP2435-CR.awb
different circuits have different tests for determining whether
a crime is a CIMT. Majority op., ¶¶37, 39, 41. Accordingly,
the majority concludes that the immigration consequences were
unclear and that defense counsel's performance was not deficient
because he needed to do no more than tell Ortiz-Mondragon that a
conviction may have negative immigration consequences.
¶89 The majority ignores, however, that this case did not
require defense counsel to determine the definition of a CIMT.
Rather he needed to determine only if the crime Ortiz-Mondragon
faced, substantial battery with a domestic abuse enhancer,
qualified as a CIMT. Further, defense counsel was not required
to determine what other federal circuits would have done.
Rather, he should have looked at the law in the Seventh Circuit,
which governs Ortiz-Mondragon's case.
¶90 Review of removal proceedings conducted in this
federal judicial circuit is performed by the Seventh Circuit
Court of Appeals and therefore its precedent governs those
cases. See 8 U.S.C. § 1252(b)(2) ("The petition for review
shall be filed with the court of appeals for the judicial
circuit in which the immigration judge completed the
proceedings.").
¶91 Immigration removal proceedings for Wisconsin
residents, such as Ortiz-Mondragon, are conducted in Chicago.
See Executive Office for Immigration Review, Department of
Justice, "EOIR Immigration Court Listing" (2015), available at
www.justice.gov/eoir/immigration-court-administrative-control-
8
No. 2013AP2435-CR.awb
list#Chicago.5 Thus, upon completion of his sentence Ortiz-
Mondragon's removal proceeding would have occurred in Chicago
and Seventh Circuit Court of Appeals precedent would govern.
¶92 A basic search of Seventh Circuit cases provides a
clear answer to whether domestic battery qualifies as a CIMT.
The answer is "yes." In Coyomani-Cielo v. Holder, the Seventh
Circuit plainly stated that "[defendant] was convicted of
domestic battery, which qualifies as a CIMT . . . ." 758 F.3d
908, 910 (7th Cir. 2014).
¶93 The majority attempts to explain away this clear
statement by inaccurately asserting that it was presented as a
concession by the defendant. Majority op., ¶68 n.20. It was
neither a concession nor even a debatable point. Rather, the
court made this statement as a clear statement of fact in its
description of the background of the case.
¶94 Admittedly, Coyomani-Cielo considered a conviction
under Illinois law. Accordingly, to determine whether Ortiz-
Mondragon's conviction would be a CIMT, one must take the
additional step of comparing the Illinois statute at issue in
that case, 720 ILCS 5/12-3.2, with the Wisconsin statutes at
issue, Wis. Stat. §§ 940.19(2), 968.075.
¶95 Under the Illinois statute, domestic battery is
committed by: "knowingly without legal justification by any
means: (1) Caus[ing] bodily harm to any family or household
5
The DOJ list of immigration courts and their assigned
geographic responsibilities is published pursuant to 8 C.F.R.
§ 1003.11.
9
No. 2013AP2435-CR.awb
member; (2) Mak[ing] physical contact of an insulting or
provoking nature with any family or household member."6 Under
the Wisconsin statute, Ortiz-Mondragon was convicted of
"caus[ing] substantial bodily harm to another by an act done
with intent to cause bodily harm to that person or another."
Wis. Stat. § 940.19(2). The domestic abuse enhancer means that
the individual Ortiz-Mondragon inflicted harm on was "his or her
spouse or former spouse, . . . an adult with whom [he] resides
or formerly resided or . . . an adult with whom the person has
a child in common." Wis. Stat. § 968.075.
¶96 The statutes reveal that a Wisconsin conviction for
substantial battery with a domestic abuse enhancer necessarily
would qualify as domestic battery under Illinois law. Thus, the
crime for which Ortiz-Mondragon was convicted should likewise be
deemed a CIMT.
¶97 Other Seventh Circuit precedent is in accord. In
Garcia-Meza v. Mukasey, 516 F.3d 535 (7th Cir. 2008), the court
6
Illinois defines "family or household member" as
including:
spouses, former spouses, parents, children,
stepchildren, and other persons related by blood or by
present or prior marriage, persons who share or
formerly shared a common dwelling, persons who have or
allegedly have a child in common, persons who share or
allegedly share a blood relationship through a child,
persons who have or have had a dating or engagement
relationship, persons with disabilities and their
personal assistants, and caregivers as defined in
Section 12-4.4a of this Code.
720 ILCS 5/12-0.1
10
No. 2013AP2435-CR.awb
considered whether aggravated battery of a police officer
qualified as a CIMT. The court observed that "crimes involving
moral turpitude are usually serious crimes (in terms of the
magnitude of the loss they cause or the indignation in the
public they arouse) that are committed deliberately." Id. at
536. It commented that precedent has "emphasized the bodily
harm requirement in concluding that the assault crime was
serious enough to be turpitudinous." Id. at 537. It then
referred to precedent determining that "moral turpitude
necessarily inheres in assault and battery offenses that are
defined by reference to the infliction of bodily harm upon a
person whom society views as deserving of special protection,
such as a child, a domestic partner, or a peace officer." In re
Sanudo, 23 I.& N. Dec. 968, 971-72 (B.I.A. 2006).
¶98 Ultimately, the Seventh Circuit determined that
battery of a police officer did not necessarily constitute a
CIMT because the Illinois statute at issue did not include
bodily harm as an element. Garcia-Meza, 516 F.3d at 538.
Garcia-Meza is instructive. Its analysis reveals that a crime
qualifies as a CIMT when it includes as an element bodily harm
to a person who society recognizes as deserving of special
protection, such as a domestic partner. See also Castellanos v.
Holder, 652 F.3d 762, 764 (7th Cir. 2011) (defendant conceded
his domestic battery conviction constituted a CIMT); Benaouicha
v. Holder, 600 F.3d 795, 797 (7th Cir. 2010) (noting defendant's
concession that his conviction for the battery of his wife
11
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constituted a conviction for a CIMT).7 Ortiz-Mondragon's
conviction for substantial battery with a domestic abuse
enhancer meets these criteria.
¶99 Even if defense counsel had been unable to find and
analyze the governing precedent, he could have determined that
substantial battery with a domestic abuse enhancer qualified as
a CIMT by consulting legal practice guides. Padilla instructs
attorneys to consult guidebooks to educate themselves about the
relevant immigration law: "we expected that counsel who were
unaware of the discretionary relief measures would 'follo[w] the
advice of numerous practice guides.'" 559 U.S. at 368.
¶100 Practice guides indicate that substantial battery with
a domestic abuse enhancer qualifies as a CIMT. For example,
7
Although they are not binding, it is notable that other
jurisdictions have determined that crimes comparable to
substantial battery with a domestic abuse enhancer constitute
CIMTs. See, e.g., Medina v. United States, 259 F.3d 220, 228
(4th Cir. 2001) ("we find it significant that Medina's crime was
carried out against his former fiancée, Maria Bracho. The INS——
which is statutorily authorized to administer the immigration
laws and determine what constitutes a CIMT——has, in the past
several years, taken steps to assert that crimes of assault upon
victims that have a 'special relationship' with the assaulter
may be a CIMT."); Toutounjian v. INS, 959 F. Supp. 598, 603
(W.D.N.Y. 1997) ("Sexual or physical abuse of women or children
has been almost uniformly found to involve a crime of moral
turpitude."); In re Tran, 21 I. & N. Dec. 291, 292-93 (BIA 1996)
(concluding that acts of violence against someone in a special
relationship with the assaulter is "different from [assault]
between strangers or acquaintances," and is a CIMT). The one
case the majority cites as stating to the contrary, Morales-
Garcia v. Holder, 567 F.3d 1058 (9th Cir. 2009), has not been
followed outside of the Ninth Circuit.
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Maria Baldini-Porterman's comprehensive guide on immigration
consequences conveys the same information as Garcia-Meza:
Where the elements of a domestic battery offense do
not require either actual infliction of serious harm
or specific intent and physical injury to the victim,
the offense is not categorically a crime involving
moral turpitude. The willful infliction of corporal
injury on a spouse, cohabitant, or parent of the
offender's child in violation of California Penal Code
§ 273.5(a) has been found to be a crime involving
moral turpitude.
Maria Baldini-Porterman, Defending Non-Citizens in Illinois,
Indiana and Wisconsin (Heartland Alliance's National Immigrant
Justice Center 2009).
¶101 Likewise, another practice guide states: "moral
turpitude has been found where the assault and battery offenses
are defined by reference to the infliction of bodily harm on
someone whom society views as deserving of special protection
(such as a child or spouse)." Austin T. Fragomen, Jr. and
Steven C. Bell, Immigration Fundamentals: A Guide to Law and
Practice, § 7:2.2 at 7-32 (4th ed. 2014).
¶102 The "Immigration Consequences Crimes Summary
Checklist," published by the Immigrant Defense Project (2010),
provides even clearer guidance. Its list of CIMTs includes
"[c]rimes in which bodily harm is caused or threatened by an
intentional act . . . ." Ortiz-Mondragon's conviction for
substantial battery with a domestic abuse enhancer
unquestionably meets these requirements. As noted above,
substantial battery is defined as "caus[ing] substantial bodily
harm to another by an act done with intent to cause bodily harm
to that person or another." Wis. Stat. § 940.19(2).
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No. 2013AP2435-CR.awb
¶103 By focusing on the difficulty of defining "crimes of
moral turpitude" and the different approaches the circuit courts
take in determining whether a crime is a CIMT, the majority
hides the fact that a conviction for substantial battery with a
domestic abuse enhancer qualifies as a CIMT in the Seventh
Circuit. Whether by reading the plain language of the domestic
abuse subsection of the statute or by following clear Seventh
Circuit precedent, defense counsel should have discovered the
immigration consequences of Ortiz-Mondragon's plea. It was
clear the plea would render him deportable. Thus, "the duty to
give correct advice is equally clear." Padilla, 559 U.S. at
368. Defense counsel was obligated to provide the advice that
was available. Id., 371.
¶104 As explained above, the United States Supreme Court
has instructed, "[t]he proper measure of attorney performance
remains simply reasonableness under prevailing professional
norms." Strickland, 466 U.S. at 688. In criminal
representation, this "entails certain basic duties," including
the "duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary." Id. at 688, 691. "[A]n attorney's ignorance of a
point of law that is fundamental to his case combined with his
failure to perform basic research on that point is a
quintessential example of unreasonable performance under
Strickland." Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014).
¶105 The majority conducts no inquiry into whether defense
counsel's research was reasonable under professional norms, or
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No. 2013AP2435-CR.awb
whether defense counsel was ignorant on a fundamental point of
law (i.e. the immigration consequences of a plea), nor could it.
Without a Machner hearing the record is silent in this respect.
Just as the record fails to show what warnings defense counsel
provided, it also fails to show that he did adequate research
into the immigration issue.
III
¶106 In contrast to the majority, I would remand this case
for a Machner hearing. Such hearings are required unless the
motion claiming ineffectiveness "presents only conclusory
allegations," "fails to allege sufficient facts to raise a
question of fact," or "if the record conclusively demonstrates
that the defendant is not entitled to relief." Roberson, 292
Wis. 2d 280, ¶43.
¶107 Ortiz-Mondragon's motion is quite detailed and alleges
sufficient facts which, if true, show that he is entitled to
relief. It details that his plea rendered him ineligible for
cancellation of his removal:
Mr. Ortiz-Mondragon pleaded no contest to substantial
battery, domestic abuse, contrary to Wis. Stat.
§ 940.19(2). This is a crime involving moral
turpitude. The maximum sentence for this offense is
3.5 years of imprisonment. Because the maximum period
of confinement exceeds one year, Mr. Ortiz-Mondragon's
conviction rendered him ineligible for cancellation of
removal.
It also explains that the plea prevents Ortiz-Mondragon from
returning to the United States:
[B]ecause of his convictions, Mr. Ortiz-Mondragon is
permanently excluded from legally re-entering the
United States. An individual applying for admission
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No. 2013AP2435-CR.awb
to the United States cannot have been convicted for a
crime involving moral turpitude. INA
§212(a)(2)(A)(i)(I). The only exception is when the
conviction involves a crime for which the maximum
punishment is less than one year, and the actual
sentence of the court does not exceed six months.
¶108 Further, the motion alleges that defense counsel was
deficient for failing to advise him of these consequences:
"[Ortiz-Mondragon] was not properly advised of the adverse
immigration consequences of his plea." It explains what his
attorney should have told him: "counsel's advice to Mr. Ortiz-
Mondragon should have been that accepting a plea agreement in
which he would plead guilty or no contest to substantial
battery-domestic abuse would result in automatic removal and
permanent exclusion from the United States." It then claims
that his attorney failed to provide this advice: "trial counsel
failed to advise him of adverse immigration consequences of his
plea, specifically that the convictions mandated removal and
resulted in permanent exclusion from the country once removed."
¶109 Finally, the motion alleges that this deficient
performance prejudiced Ortiz-Mondragon: "Mr. Ortiz-Mondragon
would have gone to trial instead of pleading no contest had he
known his convictions made him automatically deportable and
permanently excluded." It explains that "[Ortiz-Mondragon] has
already left the country and is now in Mexico. Due to his
conviction, he was unable to apply for cancellation of his
removal and he is now permanently excluded from re-entering the
country." "[H]ad Mr. Ortiz-Mondragon known and understood the
consequences of a conviction for substantial battery, he would
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No. 2013AP2435-CR.awb
have attempted to negotiate a plea agreement that avoided the
automatic and permanent consequences he now faces."
¶110 These facts, if true, show that Ortiz-Mondragon's
attorney was deficient because he did not meet the Padilla
requirements. They also sufficiently allege that the deficiency
prejudiced Ortiz-Mondragon. Thus, if true, the allegations
establish a violation of Ortiz-Mondragon's Sixth Amendment
rights, entitling him to relief.
¶111 Nothing in the record conclusively rebuts Ortiz-
Mondragon's claim. It does not indicate what, if anything,
defense counsel told Ortiz-Mondragon about the immigration
consequences of his plea. It also fails to indicate the basis
for that advice, whether it was grounded in research, and
whether it was reasonable under prevailing professional norms.
¶112 None of the scenarios that would preclude a Machner
hearing are present. Roberson, 292 Wis. 2d 280, ¶43 (Machner
hearing not required if the motion "presents only conclusory
allegations," "fails to allege sufficient facts to raise a
question of fact," or "if the record conclusively demonstrates
that the defendant is not entitled to relief."). Accordingly, a
Machner hearing is required to determine the merits of Ortiz-
Mondragon's claim.
IV
¶113 Under Padilla, attorneys representing noncitizens
must research the relevant immigration consequences of a
conviction and provide that information to their clients. These
requirements are important protections to noncitizens.
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¶114 Each of the majority's errors removes some of that
protection. By ignoring statutory grounds rendering Ortiz-
Mondragon deportable, the majority implicitly approves of
attorneys not reading the governing immigration statutes,
leaving the door open for uninformed, inaccurate advice. By
determining that the immigration consequences of Ortiz-
Mondragon's plea are unclear because the definition of CIMT is
unclear, the majority reduces the number of situations in which
attorneys must provide available immigration advice.
¶115 In contrast to the majority, I believe that Padilla's
requirements have teeth. Had defense counsel researched the
immigration consequences of Ortiz-Mondragon's plea, he would
have discovered that it rendered Ortiz-Mondragon deportable.
Under Padilla, that means that defense counsel was required to
convey that information to his client. Ortiz-Mondragon should
have the opportunity to prove that such advice was not given and
that he was prejudiced as a result. Therefore a remand is
required and a Machner hearing is necessary.
¶116 For the reasons set forth above, I respectfully
dissent.
¶117 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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