from a judgment and an order of the circuit court for
Walworth County No. 2012CF552: DAVID M. REDDY, Judge.
Neubauer, C.J., Gundrum and Hagedorn, JJ.
Marcos Rosas Villegas (Villegas) 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.
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).
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' challenges to the juvenile waiver
proceedings-neither of which are offered as separate grounds
for plea withdrawal-are forfeited under the guilty plea
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.
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. 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.
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.
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
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
THE DEFENDANT: Yes, sir.
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?
THE DEFENDANT: No, sir.
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.
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.
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
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."
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
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.
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. 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."
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
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.
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.