from judgments and an order of the circuit court for Columbia
County No. 2012CF582, ALAN J. WHITE, Judge.
Lundsten, Sherman and Blanchard, JJ.
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. 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.
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.
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
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.
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.
We reference additional facts in the Discussion section
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
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. Accordingly, we return to Reyes
Fuerte's two-part argument.
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.
First, WIS. Stat. § 971.08(1)(c) specifies the
(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
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
Wis. Stat. § 971.08(2).
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,
Here, the parties disagree with respect to both conditions
for plea withdrawal.
Whether The Advisement Given Complied With The Statute
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.
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