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State v. Reyes Fuerte

Supreme Court of Wisconsin

December 19, 2017

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

          ORAL ARGUMENT: September 5, 2017

         REVIEW 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

         REVIEW of a decision of the Court of Appeals Circuit Court Columbia County No. 2012CF582 Alan J. White Judge

          For 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.

          For 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.

         ¶1 This is a review of a published decision of the court of appeals that reversed the Columbia County Circuit Court's[1] 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) .[2] State v. Reyes Fuerte, 2016 WI.App. 78, 372 Wis.2d 106, 887 N.W.2d 121.

         ¶2 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[3] hearing in order to determine whether Reyes Fuerte knew of the potential immigration consequences of his plea at the time of the plea hearing.

         ¶3 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.

         ¶4 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 harmless.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         ¶5 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 plea:

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.

         Reyes 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.

         ¶6 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[4] 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 was unclear.

         ¶7 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 defense.

         ¶8 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.

         ¶9 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., ¶19.

         ¶10 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.

         ¶11 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.

         ¶12 The State petitioned this court for review, which we granted on January 18, 2017.

         II. STANDARD OF REVIEW

         ¶13 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.

         ¶14 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.

         ¶15 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.

         ¶16 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.

         ¶17 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.

         ¶18 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).

         III. DISCUSSION

         ¶19 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 statute. Id.

         ¶20 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 were harmless.

         A. Statutory Background

         ¶21 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 required advisement:

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.

         ¶22 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 ...

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