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State v. Fuerte

Court of Appeals of Wisconsin, District IV

September 8, 2016

State of Wisconsin, Plaintiff-Respondent,
v.
Jose Alberto Reyes Fuerte, Defendant-Appellant.

         APPEAL from judgments and an order of the circuit court for Columbia County No. 2012CF582, ALAN J. WHITE, Judge.

          Before Lundsten, Sherman and Blanchard, JJ.

          LUNDSTEN, J.

         ¶1 Jose Alberto Reyes Fuerte pled guilty to attempting to flee or elude an officer and to operating a motor vehicle with a controlled substance in his blood. Reyes Fuerte contends that he is entitled to plea withdrawal because (1) when taking his pleas and advising him of the potential immigration consequences of his pleas, the circuit court failed to comply with both WIS. STAT. § 971.08 and our supreme court's interpretation of that statute in State v. Douangmala, 2002 WI 62, 253 Wis.2d 173, 646 N.W.2d 1');">646 N.W.2d 1, and (2) pursuant to the same authority, he has made a sufficient showing that one of his pleas was likely to result in his deportation.[1] We agree that the circuit court failed to comply with the advisement requirement in § 971.08(1)(c). We also conclude that Reyes Fuerte's plea withdrawal motion sufficiently alleges facts that, if true, demonstrate that his plea to the fleeing an officer charge was likely to result in his deportation. However, for reasons explained below, we decline to vacate Reyes Fuerte's pleas. Instead, we reverse and remand for an evidentiary hearing at which Reyes Fuerte will have the opportunity to prove that the plea to fleeing an officer was likely to result in his deportation.[2]

         Background

         ¶2 In February 2014, Reyes Fuerte pled guilty to two crimes: fleeing an officer, a felony; and operating a motor vehicle with a controlled substance in his blood, second offense, a misdemeanor. WISCONSIN STAT. § 971.08(1)(c) provides specific language that courts are required to use when advising defendants of the deportation and other immigration consequences of a guilty or no contest plea. As described in our analysis below, the circuit court deviated in significant ways from that statutorily specified language.

         ¶3 After conviction and sentencing, Reyes Fuerte moved to withdraw his pleas, relying on WIS. STAT. § 971.08 and Douangmala. Reyes Fuerte alleged that the circuit court failed in several respects to provide the advice required by § 971.08(1)(c), including by referring to whether a defendant is a non-"resident" instead of a non-"citizen" and by omitting reference to the immigration consequence of the denial of naturalization. Reyes Fuerte also made allegations relating to the likelihood that his plea to fleeing an officer would result in his deportation.

         ¶4 The circuit court held a non-evidentiary hearing at which the prosecutor opposed Reyes Fuerte's motion on two grounds. First, the prosecutor argued that substantial compliance with the advisement requirement in WIS. STAT. § 971.08(1)(c) is sufficient and that the court's advice substantially complied with the statute. Second, the prosecutor argued, based primarily on Reyes Fuerte's plea questionnaire and waiver form, that Reyes Fuerte was actually aware of deportation consequences at the time he entered his pleas.

         ¶5 The circuit court denied Reyes Fuerte's motion, agreeing with both of the prosecutor's arguments. The circuit court did not provide an opportunity for Reyes Fuerte to present evidence regarding the likelihood that his pleas would result in deportation and did not otherwise address his allegations in that regard.

         ¶6 We reference additional facts in the Discussion section below.

         Discussion

         ¶7 Reyes Fuerte argues that he is entitled to plea withdrawal under WIS. STAT. § 971.08 and Douangmala. Before addressing the two parts of his argument, we pause to note the parties' apparent agreement on appeal that the circuit court erred when it relied on a harmless error analysis.

         ¶8 Our supreme court explained in Douangmala that harmless error principles do not apply to WIS. STAT. § 971.08(2). See Douangmala, 253 Wis.2d 173, ¶42. It follows that the failure to provide a proper advisement under the statute cannot be deemed harmless based on a showing that the defendant was actually aware of the immigration consequences information that is contained in the required advisement. See id., ¶¶3-4 & n.3, 25, 42, 46. The State does not argue that this court can affirm the circuit court based on this sort of harmless error analysis.[3] Accordingly, we return to Reyes Fuerte's two-part argument.

         ¶9 Reyes Fuerte's argument is based on the statutorily required immigration consequences advisement and the statutorily specified consequence of a court failing to provide that advisement.

         ¶10 First, WIS. Stat. § 971.08(1)(c) specifies the advisement:

(1) Before the court accepts a plea of guilty or no contest, it shall do all of the following:
(c) Address the defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."

         WIS. STAT. § 971.08(1)(c). Next, § 971.08(2) addresses what happens when a circuit court fails to provide the required advice. That subsection states, in pertinent part:

(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.

Wis. Stat. § 971.08(2).

         ¶11 Viewed together, and as pertinent here, these subsections direct that, upon a motion made by a defendant, the court "shall" permit plea withdrawal if (1) at the plea hearing, the circuit court fails to provide the required immigration consequences advisement, and (2) a defendant later shows that a plea is likely to result in one of the adverse immigration consequences listed in the required advisement. See Douangmala, 253 Wis.2d 173, ¶¶3-4, 46.

         ¶12 Here, the parties disagree with respect to both conditions for plea withdrawal.

         A. Whether The Advisement Given Complied With The Statute

         ¶13 Reyes Fuerte argues that, at his plea hearing, the circuit court failed to provide him with the immigration advice that is required by WIS. STAT. § 971.08(1)(c). Whether the circuit court's advice complied with the statute is a question of law that we review de novo. State v. Mursal, 2013 WI.App. 125, ¶ll, 351 Wis.2d 180, 839 N.W.2d 173. We agree with Reyes Fuerte that the circuit court did not comply with the statute.

         ¶14 To repeat, under WIS. STAT. § 971.08(1)(c), the circuit court was required to advise Reyes Fuerte 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 ...

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