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Courts had no jurisdiction to consider plea withdrawal motion filed more than five years after sentencing

State v. Juan M. Rodriguez-Faustino, 2012AP2777, District 1, May 29, 2013; court of appeals decision (1-judge; ineligible for publication); case activity

Rodriguez-Faustino pled to a misdemeanor drug offense and, in January 2007, was placed on probation for 12 months. (¶¶4-5). In September 2012 he filed a motion to withdraw his plea, asserting his attorney was ineffective under Padilla v. Kentucky, 130 S.Ct. 1473, 1475‑1476 (2010), for telling him he need not worry about being deported for this type of conviction. (¶6).

The court of appeals affirms the circuit court’s conclusion that it had no jurisdiction to consider the motion under either § 809.30 (the time limits for which had long since expired) or § 974.06 (Rodriguez-Faustino completed his sentence and so was no longer in custody). (¶10).

The court of appeals also agrees with the circuit court’s alternative reason for denying plea withdrawal: At the time of the plea, attorneys were not required to advise their clients of the consequences of their pleas to future immigration issues, State v. Santos, 136 Wis. 2d 528, 532-33, 401 N.W.2d 856 (Ct. App. 1987), and the requirements of Padilla are not retroactive, Chaidez v . United States, 133 S.Ct. 1103, 1113, (2013). (¶11).

Finally, the court rejects Rodriguez-Faustino’s claim that his attorney’s faulty immigration advice entitles him to the benefits of § 971.08(2), which would have entitled him to withdraw his plea had the judge failed to advise him of possible immigration consequences. This argument was not raised in the circuit court and is not supported by legal authority, so the court declines to address it. (¶¶9, 12-13).

The court observes Rodriguez-Faustino’s original attorney may not have been ineffective: “Rodriguez-Faustino entered his plea in November 2006 and was sentenced in January 2007. He still remains in the United States, over six years later. His attorney’s advice appears to have been sound.” (¶14). Though Rodriguez-Faustino is having difficulty with naturalization, it doesn’t appear his attorney told him the conviction would not affect naturalization, only that he would not be deported.

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