ORAL ARGUMENT: October 6, 2015
ON CERTIFICATION FROM THE COURT OF APPEALS (No Cites)
APPEAL from an order of the Circuit Court for Walworth County, L.C. No. 2005CF83, 2005CM257 & 2004CM245 David M. Reddy, Judge.
For the defendant-appellant, there were briefs by David Ziemer, Glendale, and Marc E. Christopher and Christopher Law Office, LLC, Milwaukee and oral argument by Marc E. Christopher.
For the plaintiff-respondent, the cause was argued by Nancy A. Noet, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.
SHIRLEY S. ABRAHAMSON, J.
¶1 This case involves the intersection of Wisconsin criminal law and federal immigration law.
¶2 This is an appeal from an order of the Circuit Court for Walworth County, David M. Reddy, Judge. The circuit court denied the motion of the defendant, Melisa Valadez, to withdraw her guilty pleas.
¶3 Ms. Valadez's motion to withdraw her guilty pleas is based on Wis.Stat. § 971.08(2) (2011-12). Before we examine § 971.08(2), we examine § 971.08(1)(c). Wisconsin Stat. § 971.08(1)(c) requires that before a circuit court accepts a plea of guilty or no contest, the circuit court "shall . . . [a]ddress the defendant personally and advise the defendant as follows: 'If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law.'"
¶4 The circuit court's colloquies with Ms. Valadez did not adhere to this statute. Judge John R. Race and Judge Robert J. Kennedy presided over the criminal proceedings in which Ms. Valadez entered guilty pleas. Neither of the circuit courts advised Ms. Valadez of the immigration consequences of a guilty plea as required by Wis.Stat. § 971.08(1)(c).
¶5 If a circuit court fails to advise a defendant of the immigration consequences (as required by Wis.Stat. § 971.08(1)(c)) and if the defendant shows that the plea is "likely" to result in the defendant's deportation,  exclusion from admission to this country, or denial of naturalization, the circuit court must ("shall") permit withdrawal of the plea and permit the defendant to enter another plea.
¶6 Section 971.08(2) provides as follows:
(2) If a court fails to advise a defendant as required by sub. (1)(c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.
¶7 The court of appeals certified the instant case to this court pursuant to Wis.Stat. § (Rule) 809.61. ¶8 The appeal presents two questions:
1. Did Melisa Valadez's motion to withdraw her pleas of guilty satisfy the "likely" statutory criterion in Wis.Stat. § 971.08(2) for mandatory vacation of the judgments of conviction, that is, did she show that her guilty pleas were "likely" to result in her exclusion from admission to this country?
2. Is there a time limit for a defendant to file a motion to withdraw a plea based on Wis.Stat. § 971.08(2)? The court of appeals further inquired: "How would such a time limit fit in with the possible need to await actual deportation proceedings before moving to withdraw the plea?"
¶9 In response to the first question, for the reasons set forth, we conclude that Ms. Valadez has demonstrated that the circuit court did not comply with Wis.Stat. § 971.08(1)(c) and that her guilty pleas are "likely" to result in her exclusion from admission to this country. Because Ms. Valadez has shown that her guilty pleas are "likely" to result in her exclusion from admission to this country, we need not reach the question of whether her pleas are also "likely" to result in deportation or denial of naturalization. Accordingly, we reverse the order of the circuit court and remand the cause to the circuit court to vacate the judgments of conviction and to permit Ms. Valadez to withdraw her guilty pleas and enter new pleas.
¶10 The court of appeals raised the second question because although the majority opinion in State v. Romero-Georgana, 2014 WI 83, ¶67 n.14, 360 Wis.2d 522, 849 N.W.2d 668, did not adopt a time limit on a Wis.Stat. § 971.08(2) motion, it strongly suggested that (at least in certain circumstances) there should be a time limit.
¶11 We do not respond to the second question. Although both parties discussed the time limit issue in their briefs, neither party argued in this court for a time limit for plea withdrawal under Wis.Stat. § 971.08(2), and both parties agreed that even if the court were to adopt a time limit, Ms. Valadez's motion is timely. At oral argument, the State conceded it was not arguing for a time limit on motions under Wis.Stat. § 971.08(2), and even if the court were to adopt a time limit, Ms. Valadez's motion was timely.
¶12 In Romero-Georgana, the court noted that four months before the defendant's postconviction motion under Wis.Stat. § 974.06 was filed, the federal government had started an investigation into the defendant's deportability. Nevertheless, the defendant in Romero-Georgana pressed forward with his Wis.Stat. § 974.06 motion, without bringing a Wis.Stat. § 971.08(2) motion, and without asking the court to construe the Wis.Stat. § 974.06 motion as a Wis.Stat. § 971.08(2) motion.
¶13 Under those circumstances, the Romero-Georgana court expressed concern about judicial efficiency, stating that "[w]hen a defendant has notice that he is likely to be deported and subsequently brings postconviction claims unrelated to Wis.Stat. § 971.08(2), we think it would be unwise to allow him to bring his claim as a § 971.08(2) motion at a later time, although he may be able to bring his claim as a Wis.Stat. § 974.06 motion if he has a sufficient reason for the delay."
¶14 The circumstances that concerned the court in Romero-Georgana are not at issue here. Ms. Valadez has not brought other postconviction motions. Ms. Valadez has not, with notice of a ripe claim, sat on her rights. Moreover, neither Ms. Valadez's counsel nor the State argued for a time limit on Wis.Stat. § 971.08(2) motions, and the State conceded that Ms. Valadez's motion would be timely even under the time limit suggested in Romero-Georgana.
¶15 Because the parties agree and do not present adversarial positions, we do not address the second question.
¶16 The facts are not in dispute for purposes of this appeal.
¶17 The defendant, Melisa Valadez, is not a citizen of the United States. She became a Lawful Permanent Resident (LPR) in 2001, when she was 15 years old. Her three children were born in the United States.
¶18 Ms. Valadez was convicted in 2004 and 2005 (when she was 19 years old) of possession of cocaine, possession of THC, and possession of drug paraphernalia in three separate cases on pleas of guilty. To the extent it may be relevant under federal immigration law,  the offenses underlying the first two cases--possession of cocaine, two counts of possession of THC, and two counts of possession of drug paraphernalia--occurred when Ms. Valadez was 18 years old. The offense underlying the third case, possession of THC as a repeater, occurred when she was 19 years old.
¶19 The transcripts of the plea hearings clearly show that the circuit court failed to warn Ms. Valadez, as required by Wis.Stat. § 971.08(1)(c), that her pleas and subsequent convictions may have immigration consequences.
¶20 As a result of these convictions, Ms. Valadez served jail time and was placed on probation. She was ordered to pay fines, have an AODA assessment, and get alcohol counseling. She has fulfilled all the conditions imposed by the circuit courts and has had no subsequent convictions in the decade since these 2004-2005 convictions.
¶21 In 2013, Ms. Valadez filed a motion under Wis.Stat. § 971.08(2) to withdraw her guilty pleas, arguing that as a result of the convictions she is unable to renew her LPR card; she is subject to deportation; she likely would be excluded from admission to the United States if she left the country; and she likely would be denied naturalization if she applied to become a naturalized American citizen.
¶22 At the initial hearing on Ms. Valadez's motion to withdraw her plea, the circuit court granted her additional time to attempt to acquire an affidavit or some narrative of verbal communications with a federal agent in order to meet the requirements of this court's decision in State v. Negrete, 2012 WI 92, 343 Wis.2d 1, 819 N.W.2d 749.
¶23 To supplement Ms. Valadez's initial brief, defense counsel submitted e-mail communications between counsel and an Immigration and Customs Enforcement (ICE) Special Agent. The emails were introduced apparently to confirm a telephone call between defense counsel and the ICE Special Agent regarding immigration law and enforcement practices. The e-mails did not confirm or challenge defense counsel's views of immigration law.
¶24 Citing Negrete (especially footnote 8), the circuit court denied Ms. Valadez's motion to withdraw her pleas. Footnote 8 in Negrete states as follows:
More specifically, if a defendant chooses to establish that the crime to which the defendant pleaded is one for which the defendant would have been subject to potentially adverse immigration consequences under controlling federal law, the defendant should cite the federal law upon which reliance is placed. For example, under federal law, 8 U.S.C. § 1227 (2006) delineates numerous categories of aliens who are potentially deportable. Relevant to motions under Wis.Stat. § 971.08(2) is the federal statute providing that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). See State v. Baeza, 174 Wis.2d 118, 127, 496 N.W.2d 233 (Ct. App. 1993).
In addition, in such a motion, a defendant should allege that the federal government has conveyed its intent to impose one of the enumerated immigration consequences set out in Wis.Stat. § 971.08(2). This required nexus between the crime to which a plea was made and adverse immigration consequences can be demonstrated by alleging facts that show that, because of his plea, the defendant has become subject to deportation proceedings, has been excluded from admission to the country, or has been denied naturalization.
Negrete, 343 Wis.2d 1, ¶27 n.8.
¶25 Relying on footnote 8 in Negrete, the circuit court reasoned that Ms. Valadez had not met the statutory standard of "likely" to suffer the enumerated immigration consequences, because she is not presently the object of a proceeding for deportation, exclusion from admission, or denial of naturalization. The circuit court concluded the hearing stating: "Gratuitously, I will say that I think that this area is ripe for some clarification from the appellate court."
¶26 The court of appeals certified the instant case to this court. The court of appeals wrote that the "degree of certainty necessary to show, for purposes of plea withdrawal under Wis.Stat. § 971.08(2), that a defendant is likely to suffer immigration consequences as a result of a guilty plea is not clear under existing case law."
¶27 This case requires us to interpret and apply Wis.Stat. § 971.08(2) to the undisputed facts. The interpretation and application of a statute to undisputed facts are ordinarily questions of law which this court determines independently of the circuit court and court of appeals, but benefiting from their analyses. We begin with the text of the statute and examine case law interpreting and applying the statute.
¶28 In order to withdraw a guilty or no contest plea under Wis.Stat. § 971.08(2), the statute requires a defendant to allege: (1) that the circuit court "fail[ed] to advise [the] defendant as required by [Wis. Stat. § 971.08(1)(c)]"; and (2) that the defendant's plea "is likely to result in the defendant's deportation, exclusion from admission to this country, or denial of naturalization . . . ."
¶29 No one disputes that Ms. Valadez has met the first requirement. Transcripts of the plea colloquies are available; the circuit courts did not provide the immigration warning required under Wis.Stat. § 971.08(1)(c). As case law demonstrates, it is of utmost importance that circuit courts adhere to § 971.08(1)(c) in plea colloquies.
¶30 At issue is whether Ms. Valadez showed that her guilty pleas are "likely" to result in one of the enumerated immigration consequences. If Ms. Valadez makes this showing, she may withdraw her pleas and enter new ones, irrespective of whether she was otherwise aware of such consequences. State v. Douangmala, 2002 WI 62, ¶¶22-25, 42, 253 Wis.2d 173, 646 N.W.2d 1.
¶31 Ms. Valadez was convicted more than 10 years ago for violations of laws relating to controlled substances. She does not allege she is the subject of a deportation proceeding. According to the record, the federal government has not taken any steps to deport her and has not manifested any intent to deport her.
¶32 Ms. Valadez's case was not presented in this court, however, as solely a deportation case. Ms. Valadez argues that unlike many who seek to vacate guilty pleas by merely claiming they are "likely" to be deportable, she is claiming that she is "likely" to be excluded from admission.
¶33 Ms. Valadez claims that even though she is a Lawful Permanent Resident, if she were to leave the United States and seek to return, she would be excluded from admission as a result of her convictions. She ...