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State v. Villegas

Court of Appeals of Wisconsin, District II

September 13, 2017

State of Wisconsin, Plaintiff-Respondent,
Marcos Rosas Villegas, Defendant-Appellant.

         APPEAL from a judgment and an order of the circuit court for Walworth County Cir. Ct. No. 2012CF552: DAVID M. REDDY, Judge. Affirmed.

          Before Neubauer, C.J., Gundrum and Hagedorn, JJ.

          HAGEDORN, J.

         ¶1 Marcos Rosas Villegas (Villegas)[1] is an illegal immigrant who was brought to the United States from Mexico as a young child. When he was sixteen, he and two others broke into a home brandishing weapons, tied up the occupants, and robbed them. The State filed a delinquency petition charging him with armed robbery party to a crime (PTAC) and three other related offenses. The State also filed, and the court granted, a petition to waive Villegas into adult court. Villegas subsequently pled guilty to armed robbery PTAC.

         ¶2 Villegas sought postconviction relief and was denied. On appeal, he challenges both the juvenile and adult court proceedings. He challenges the juvenile waiver proceedings as both an erroneous exercise of discretion generally, and on the grounds that his counsel provided ineffective assistance. He further maintains that he should be able to withdraw his guilty plea in adult court because the plea colloquy was defective and on the basis that he received ineffective assistance of counsel there as well. His plea withdrawal argument is premised largely on the rationale that his attorney failed to inform him that his plea would render him inadmissible to the United States and ineligible for Deferred Action for Childhood Arrivals (DACA).

         ¶3 We affirm. Villegas has failed to show that the plea colloquy was defective. Villegas' attorney also did not perform deficiently when he failed to counsel Villegas about DACA and correctly warned Villegas that inadmissibility was a likely result of the plea. Because his guilty plea was valid, Villegas has waived the right to challenge the juvenile waiver proceedings, including his allegations of ineffective assistance.


         ¶4 Villegas is an illegal immigrant who was brought to the United States when he was five years old. In November 2012, the State filed a delinquency petition accusing Villegas of armed robbery, burglary, and two counts of false imprisonment. Villegas was sixteen at the time of the alleged conduct. The petition set forth the following.

         ¶5 Villegas and two others knocked on the door of an apartment. When a woman, S.A., answered, they pushed their way into the apartment demanding money and marijuana. Two of the housebreakers wielded knives.[2] Villegas and his cohorts proceeded to restrain S.A. and another woman by duct taping their hands behind their backs and told them to "stay still" or they would "get hurt." During all of this, S.A.'s two young children were home and in the bedroom. One of the occupants of the apartment was apparently in on the plot; he had arrived earlier to "make things look like they were cool." The accomplice was restrained with duct tape as well. Eventually, the assailants left, stealing an unspecified amount of money and a gaming system.

         ¶6 In light of the seriousness of the offense, the State petitioned the juvenile court to waive its jurisdiction, which Villegas' attorney vigorously opposed. Following a hearing, the juvenile court found that retaining jurisdiction was contrary to the best interests of the community and Villegas. Accordingly, it granted the petition, and Villegas was charged as an adult.

         ¶7 Villegas reached an agreement with the State and pled guilty to armed robbery PTAC; the other charges were dismissed and read in at sentencing. Before entering the plea, the circuit court engaged Villegas in a colloquy to ensure he understood the agreement and the rights he was giving up. The court explained that armed robbery was "a very serious felony" and carried a potential punishment of forty years in prison. Although there would be a presentence investigation and a sentencing recommendation, the court warned that it was not bound by that recommendation. Villegas indicated that he understood the nature of the offense, the possible punishment, and that the court was not bound by any sentencing recommendation.

         ¶8 The court proceeded to outline that Villegas was giving up his right to a trial, including the associated rights of assistance of counsel during the trial, forcing the State to meet its burden of proof, cross-examining the State's witnesses, and calling his own witnesses. Villegas indicated that he understood. The court also asked whether Villegas had any questions about the plea questionnaire, and Villegas indicated he did not. The court then cautioned that "if you are not a citizen of the United States you are advised that a plea of guilty … may result in your deportation, the exclusion from admission to this country or even denial of naturalization under federal law." The court followed up and asked Villegas if he understood that Immigration and Customs Enforcement "may look into this case"; Villegas indicated he did. Finally, the court asked Villegas if he understood the factual basis for the charge; Villegas said yes. The court did ask two questions concerning the agreement itself that required clarification by Villegas' attorney-Robert Kennedy.

THE COURT: Do you have any plea agreement other than the court will order a presentence investigation-called a PSI-and that both sides would be free to argue. Do you know anything else that you have been offered?
MR. KENNEDY: Your Honor, I don't think he
understands you, but in any case the agreement that was just stated today by myself is that, the sole agreement, the only agreement you know of?
THE COURT: When you leave here do you expect that there will be other concessions?
MR. KENNEDY: I don't know if he understands that either. Do you think that they are going to offer or make any other promises to you or give you any other things other than what we have agreed to?

         Nowhere else in the colloquy did Villegas or his attorney indicate that he did not understand the proceedings. Based on its examination, the court found that Villegas "has freely and voluntarily tendered his plea with knowledge of the factual basis." After Villegas was sentenced, Immigration and Customs Enforcement issued a Notice of Intent to Issue a Final Administrative Removal Order, which provided that Villegas would be deported upon completing his sentence.

         ¶9 Villegas brought a postconviction motion requesting he be allowed to withdraw his plea. He maintained that the circuit court's plea colloquy was defective, he did not understand the colloquy and was pressured into signing the plea questionnaire, and his counsel rendered ineffective assistance leading up to the plea. The motion also sought reversal of the waiver into adult court on the grounds that the juvenile court erroneously exercised its discretion by waiving jurisdiction and that his counsel performed ineffectively in fighting the petition.

         ¶10 The circuit court ordered a hearing on the motion at which Villegas and Kennedy both testified. Kennedy testified he told Villegas that he could appeal the juvenile court's waiver determination, but the "chance of success [was] minimal." As a result, Villegas elected not to appeal the juvenile court's ruling. Kennedy also explained that Villegas never indicated he wished to appeal the juvenile court's decision after pleading guilty or even thought that was a possibility. When asked whether he had specifically informed Villegas that his guilty plea would waive his right to appeal the juvenile court's waiver determination, Kennedy responded that he did not specifically address that point. Kennedy did, however, explain to Villegas that "a plea would waive virtually all rights he had."

         ¶11 Although unaware of Villegas' status as an illegal immigrant during the juvenile waiver hearing, Kennedy testified that he was well aware of that fact before the plea hearing and advised Villegas accordingly. Kennedy indicated that he spent about two hours going over the plea questionnaire, "explaining it to [Villegas] to make sure he fully understood it." The questionnaire contained the following section addressing the immigration consequences of his plea: "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." Kennedy addressed this section with Villegas and "went over it again and again." Kennedy "pointed out to [Villegas] that it was very likely that he was going to be deported or very likely that his citizenship would be very badly damaged, " including the "possibilities of citizenship." In terms of probability, Kennedy explained, "My advice to him was sort of in the 99 percentile range of being deported." In Kennedy's opinion, Villegas "understood" these consequences but "didn't want to face" them. Although Kennedy did not specifically discuss with Villegas whether he would be able to return to the United States after deportation, he "never said anything to [Villegas] to suggest that he might be able to come back."

         ¶12 Given the lack of "any real chance [Villegas] could stay in the United States, " Kennedy explained that pleading guilty was part of a "strategy … to minimize the damage to my client." Kennedy believed it would be "virtually impossible" to win at trial, and going to trial "would probably do a great deal of harm by actually forcing the testimony of those victims and the children." Kennedy explained the relative chances of success to Villegas and "discussed it very thoroughly." A counteroffer to the State's plea offer was attempted, but when Kennedy suggested that Villegas might take his case to trial, the State called his "bluff."

         ¶13 Kennedy clarified that Villegas had no trouble understanding what was going on during the plea hearing, fully understood the consequences of his plea, and spoke English well. After going over the plea questionnaire "extensively, " Kennedy averred that Villegas understood the court's colloquy "perfectly well, " and any points of ambiguity in the colloquy had been addressed and clarified.

         ¶14 Villegas-now using an interpreter-told a very different story. Prior to his plea, Villegas claimed that Kennedy "didn't explain anything" and merely "read what was on the paper" and particularly failed to explain the immigration consequences.[3] He did admit that he knew deportation was a possibility but denied ever being told that deportation was "virtually … certain." Even though he pled guilty, Villegas alleged that he "thought there was still a possibility" he would not be deported and "thought [he] could return to children's court by appealing." Villegas claimed that Kennedy had not talked to him about appealing the waiver. Villegas also accused the circuit court of failing to explain the immigration consequences of his plea. Villegas advised that he did not understand everything said during the plea hearing "because the words that were used were hard to understand, " and he felt he could not ask for clarification because he was "scared." Moreover, Kennedy never even told him he had a right to have a trial. He pled guilty, Villegas claimed, merely because he was told to "sign this paper or the judge will get mad."

         ¶15 Because of the Wisconsin Supreme Court's then-pending decisions in State v. Shata, 2015 WI 74, 364 Wis.2d 63, 868 N.W.2d 93');">868 N.W.2d 93, and State v. Ortiz-Mondragon, 2015 WI 73, 364 Wis.2d 1, 866 N.W.2d 717-b');">866 N.W.2d 717-both addressing the scope of an attorney's duty to provide immigration advice-the postconviction court postponed ruling on the motion. After the Wisconsin Supreme Court decisions were released, the circuit court reconvened. The court recited the holdings of each decision, recounted the advice given by Kennedy that deportation was in the "ninety-ninth percentile range, " and asked Villegas' postconviction counsel why Shata and Ortiz-Mondragon did not control the outcome of the motion. Villegas' counsel conceded that given the holdings of the two cases, "Kennedy was [not] ineffective in advising [Villegas] about … his deportation consequences of his crime." Following this concession, the court did not address the argument further or make any specific findings of fact on the immigration-related issues.

         ¶16 The court then rejected the remainder of Villegas' arguments. It concluded that Villegas' valid guilty plea forfeited any nonjurisdictional challenge to the juvenile waiver hearing based on State v. Kraemer, 156 Wis.2d 761, 457 N.W.2d 562');">457 N.W.2d 562 (Ct. App. 1990). As to Villegas' argument that Kennedy was ineffective for failing to advise him that his plea would forfeit any challenge to the juvenile waiver hearing, the court concluded that Kennedy was not ineffective. On this point, the court specifically found that Kennedy discussed appealing the juvenile court's waiver determination, and Villegas voluntarily decided not to pursue the issue further. Villegas appeals this decision.


         ¶17 Villegas challenges both his plea and his waiver into adult court. As explained further below, the circuit court permissibly and correctly denied the motion to withdraw his plea. Since his plea suffers from no infirmities, he has waived any right to challenge his juvenile waiver proceeding, and his conviction is affirmed.

         Plea Withdrawal Generally

         ¶18 A defendant who seeks to withdraw his or her plea after sentencing-as Villegas does here-must prove by clear and convincing evidence that withdrawal is necessary to correct a manifest injustice. State v. Bentley, 201 Wis.2d 303, 548 N.W.2d 50 (1996); see also State v. Taylor, ...

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