ARGUMENT: September 5, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 372 Wis.2d
106, 887 N.W.2d 121 PDC No: 2016 WI.App. 78 - Published
of a decision of the Court of Appeals Circuit Court Columbia
County No. 2012CF582 Alan J. White Judge
the plaintiff-respondent-petitioner, there were briefs filed
by Nancy A. Noet, assistant attorney general, and Brad D.
Schimel, attorney general. There was an oral argument by Lisa
E.F. Kumfer, assistant attorney general.
the defendant-appellant there was a brief filed by Ben M.
Crouse and Sesini Law Group, S.C., Milwaukee. There was an
oral argument by Ben M. Crouse.
MICHAEL J. GABLEMAN, J.
This is a review of a published decision of the court of
appeals that reversed the Columbia County Circuit
Court's order denying Jose Alberto Reyes
Fuerte's ("Reyes Fuerte") motion to withdraw
two guilty pleas for two separate criminal violations. The
motions for withdrawal were made pursuant to Wis.Stat. §
971.08(2) (2013-14) . State v. Reyes Fuerte, 2016
WI.App. 78, 372 Wis.2d 106, 887 N.W.2d 121.
The State argues that motions to withdraw a guilty plea
pursuant to Wis.Stat. § 971.08(2) should be subject to
harmless error analysis pursuant to Wis.Stat. §§
971.26 and 805.18, and thus this court should overrule its
decision in State v. Douangmala, 2002 WI 62, 253
Wis.2d 173, 646 N.W.2d 1');">646 N.W.2d 1. The State asks this court to remand
this matter to the circuit court for a
Bangert hearing in order to determine whether
Reyes Fuerte knew of the potential immigration consequences
of his plea at the time of the plea hearing.
We hold that Douangmala was objectively wrong
because it failed to properly consider the harmless error
statutes, Wis.Stat. §§ 971.26 and 805.18, and is
thus overruled. Applying harmless error analysis, we further
hold that the circuit court's error in this case was
harmless as a matter of law and thus reverse the decision of
the court of appeals.
We begin with a description of the facts and procedural
history. We then set forth the standard of review. We begin
our analysis by setting forth the decisions of this court and
the court of appeals considering the applicability of
Wis.Stat. §§ 971.26 and 805.18 to Wis.Stat. §
971.08(2). We follow with our conclusion that
Douangmala was wrongly decided because harmless
error analysis does apply to § 971.08(2). Finally, we
conclude that the circuit court's error in this case was
FACTUAL AND PROCEDURAL BACKGROUND
Reyes Fuerte entered guilty pleas on February 20, 2014, to
two charges: (1) attempting to flee or elude a traffic
officer, contrary to Wis.Stat. § 346.04(3), and (2)
second-offense operating with a restricted controlled
substance in his blood, contrary to Wis.Stat. §§
346.63(1) (am) and 346.65(2)(am)2. At the plea hearing, the
circuit court gave the following advisement regarding the
potential immigration consequences of Reyes Fuerte's
Usually we're looking at felonies, but any conviction to
a person who is not a resident of the United States could
lead, at some point in the future, to that person either
being denied re-entry or that person being required to leave
this country. And I'm not saying that's going to
happen at all. I'm just saying that convictions can lead
to those results.
Fuerte confirmed, through an interpreter, that he understood
the circuit court's advisement. Reyes Fuerte was also
alerted to the potential immigration consequences of his plea
in the Plea Questionnaire/Waiver of Rights form, which was in
English and Spanish. Further, defense counsel was bilingual,
and stated on the record that he also went over the form in
Spanish with Reyes Fuerte.
At all times relevant to this case, Reyes Fuerte was in the
United States illegally and spoke Spanish as his first
language. At the time of his plea, Reyes Fuerte was in the
midst of deportation proceedings. He asserted cancellation of
removal as a defense in those proceedings. Cancellation of
removal allows the United States Attorney General to cancel
removal and grant lawful permanent residence to aliens
fulfilling certain criteria. 8 U.S.C. § l229b(b) (1) .
One of those criteria is that the alien has not been
convicted of a crime of moral turpitude. 8 U.S.C. §
l229b(b)(1)(C) (citing 8 U.S.C. § 1227 (a) (2) (A) (i))
. At the time of Reyes Fuerte's plea, whether either or
both of his convictions were for crimes of moral turpitude
The United States Court of Appeals for the Seventh Circuit
resolved any ambiguities late in 2014. Cano-Oyarzabal v.
Holder, 774 F.3d 914, 919 (7th Cir. 2014). In
Cano-Oyarzabal, the court affirmed a determination
by the Board of Immigration Appeals that Wis.Stat. §
346.04(3), attempting to flee or elude a traffic officer, is
a crime of moral turpitude. Id. Thus, Reyes Fuerte
was no longer eligible for the cancellation of removal
Reyes Fuerte moved to withdraw his plea pursuant to Wis.Stat.
§ 971.08(2) in June 2015, alleging that the circuit
court's immigration consequences advisement was defective
and Reyes Fuerte's guilty plea resulted in losing the
cancellation of removal defense. The circuit court denied the
motion because it found the immigration consequences
advisement substantially complied with the statute under
State v. Mursal, 2013 WI.App. 125, 351 Wis.2d 180,
839 N.W.2d 173. Reyes Fuerte appealed.
The court of appeals reversed, holding that the circuit
court's immigration consequences advisement did not
substantially comply with Wis.Stat. § 971.08(1) (c) .
Reyes Fuerte, 372 Wis.2d 106, ¶23. The court of
appeals identified two substantial deviations from the
language of the statute. Id., ¶17. First, the
circuit court used the term "resident" rather than
"citizen." Id., ¶18. This difference
was substantial to the court of appeals because each term has
a separate and distinct meaning under federal immigration
law. Id. United States citizens do not face any
immigration or citizenship consequences for their crimes.
Id. Conversely, residents of the United States who
are not citizens, even those in the country legally, may
suffer adverse immigration consequences. Id.,
Second, the circuit court made no mention of "denial of
naturalization, " one of the three warnings required by
Wis.Stat. § 971.08 (1) (c) . Id., ¶22.
Though Reyes Fuerte was not concerned with denial of
naturalization at the moment-naturalization would be possible
only if Reyes Fuerte was not deported and was granted legal
status at some point-the court of appeals rejected the
State's argument that the omission of this warning was
irrelevant because such a finding would constitute harmless
error analysis, which this court prohibited in State
v. Douangmala, 2002 WI 62, 253 Wis.2d 173, 646
N.W.2d 1. Id., ¶23.
Next, the court of appeals held that, under the second prong
of Wis.Stat. § 971.08(2), Reyes Fuerte had successfully
alleged that his plea was "likely" to result in
deportation because the cancellation of removal defense was
no longer available. Id., ¶41. The court of
appeals then remanded to the circuit court for a hearing to
determine whether Reyes Fuerte would have fulfilled the
requirements for the cancellation of removal defense except
for his guilty plea in this case. Id., ¶42.
The State petitioned this court for review, which we granted
on January 18, 2017.
STANDARD OF REVIEW
This court reviews motions to withdraw guilty pleas after
sentencing in one of two ways, known as the Bentley
standard and the Bangert standard. State v.
Negrete, 2012 WI 92, ¶¶16, 19, 343 Wis.2d 1,
819 N.W.2d 749.
Under the Bentley standard, the reviewing court
first determines whether the motion "alleges sufficient
material facts that, if true, would entitle the defendant to
relief." Id., ¶17 (citing State v.
Allen, 2004 WI 106, ¶9, 274 Wis.2d 568, 682 N.W.2d
433) . See also State v. Bentley, 201 Wis.2d 303,
309-10, 548 N.W.2d 50 (1996) . If sufficient facts are
alleged, the court then looks to the record to determine
whether an evidentiary hearing is required. Negrete,
343 Wis.2d 1, ¶17 n.6. An evidentiary hearing is
required if the record is insufficient to determine whether
the defendant is entitled to relief. Id. Conversely,
no hearing is required if the record "conclusively
demonstrates" that the defendant is not entitled to
relief, even if the motion alleges sufficient facts.
Id., ¶17. These determinations are questions of
law reviewed de novo. Id.
If the motion does not allege sufficient facts that, if true,
would entitle the defendant to relief, then the decision to
grant an evidentiary hearing is discretionary. Id.,
¶18. As such, this court reviews the decision for an
erroneous exercise of discretion. Id.
Under the Bangert standard, defendants may shift the
burden of proof to the State when: "(1) the defendant
can point to a plea colloquy deficiency evident in the plea
colloquy transcript, and (2) the defendant alleges that he
did not know or understand the information that should have
been provided in the colloquy." Id., ¶19
(citing State v. Bangert, 131 Wis.2d 246, 274-75,
389 N.W.2d 12');">389 N.W.2d 12 (1986)). This court applies de novo review to
both elements: whether the colloquy is sufficient and whether
an evidentiary hearing is required. Id.
We apply the Bangert standard in this case because
Reyes Feurte can point to a defect in the plea colloquy
transcript and Reyes Fuerte has alleged that he was unaware
of the immigration consequences of his plea. Therefore, we
review the sufficiency of the colloquy and the necessity of
an evidentiary hearing de novo. Id.
This case also requires us to interpret Wis.Stat.
§§ 971.08, 971.26, and 805.18. Statutory
interpretation is an issue of law we review de novo.
State v. Ozuna, 2017 WI 64, ¶9, 376 Wis.2d 1,
898 N.W.2d 20. However, when a party asks this court to
overrule one of its prior decisions interpreting a statute,
as the State asks us to do in this case, we do not interpret
the statute de novo. Progressive N. Ins. Co. v.
Romanshek, 2005 WI 67, ¶46, 281 Wis.2d 300, 697
N.W.2d 417. Rather, the party seeking we overturn a prior
statutory interpretation must show that the prior
interpretation was "objectively wrong" and thus the
court has a "compelling reason to overrule it."
Id., ¶45 (quoting Wenke v. Gehl Co.,
2004 WI 103, ¶21, 274 Wis.2d 220, 682 N.W.2d 405).
Before we begin our analysis, we take a moment to remind
circuit court judges that simply reading the language of the
advisement from Wis.Stat. § 971.08(1)(c) is by far the
best option. The use of quotation marks (such as those in
§ 971.08(1) (c)) is "an unusual and significant
legislative signal" that should be given effect by
circuit courts. State v. Garcia, 2000 WI.App. 81,
¶16, 234 Wis.2d 304, 610 N.W.2d 180');">610 N.W.2d 180. In this instance,
those quotation marks are best given effect by reading the
advisement as written in the statute. See id.
Though, as a result of this opinion, harmless error now
applies as a "safety net" for circuit courts, the
best practice remains reading the exact language of the
Our analysis first discusses the three statutes at issue and
how Wisconsin courts previously construed them. We next
discuss why Douangmala was wrongly decided and why
we overrule it. Finally, we apply the harmless error analysis
to this case and hold that the circuit court's errors
This case requires us to consider the interplay of three
statutes: Wis.Stat. §§ 971.08, 971.26, and 805.18.
Section 971.08(1) (c) requires a circuit court to, before
accepting a plea of guilty or no contest:
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) . The next subsection then
provides a remedy if the circuit court fails to give the
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.
Wis. Stat. § 971.08(2). This court has construed §
971.08(2) to require defendants prove two elements in order
to withdraw their pleas: (1) the circuit court failed to give
the immigration advisement to the defendant as required by
§ 971.08(1) (c), and (2) the plea is "likely"
to result in deportation, exclusion from admission, or denial
of naturalization. State v. Valadez, 2016 WI 4,
¶28, 366 Wis.2d 332, 874 N.W.2d 514.
Wisconsin Stat. §§ 971.26 and 805.18 serve as
savings clauses for judgments affected by harmless errors.
Section 971.26 applies exclusively to criminal actions:
No indictment, information, complaint or warrant shall be
invalid, nor shall the trial, judgment or other proceedings
be affected by reason of any defect or imperfection in
matters of form which do not prejudice the defendant.
Wis. Stat. § 971.26. Section 805.18 is part of the civil
procedure code, but is made applicable to criminal actions by
Wis.Stat. § 972.11(1), and states:
(1) The court shall, in every stage of an action, disregard
any error or defect in the pleadings or proceedings which
shall not affect the ...