State v. Sisakhone S. Douangmala, 2002 WI 62
For Douangmala: Robert R. Flatley
¶3 This case presents the following question: If a circuit court fails to give the deportation warning required by § 971.08(1)(c), when accepting a guilty or no-contest plea, is a defendant entitled to withdraw the plea later upon a showing that the plea is likely to result in the defendant’s deportation, regardless of whether the defendant was aware of the deportation consequences of the plea at the time the defendant entered the plea?
¶4 We answer the question presented in the affirmative. We conclude that Wis. Stat. § 971.08(2) expressly sets forth the remedy to be granted upon a defendant’s motion if a circuit court fails to advise a defendant about deportation consequences as required by § 971.08(1)(c) and if the defendant shows that the plea is likely to result in deportation. Section 971.08(2) states that under these circumstances the circuit court “shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea.” The defendant in the present case fulfilled the conditions set forth in § 971.08(2), and accordingly we reverse the decision of the court of appeals affirming the order of the circuit court that >denied the defendant’s motion to withdraw his no-contest plea. We remand the cause to the circuit court to vacate the judgment of conviction and permit the defendant to withdraw his plea and enter another plea.
The court thus overrules the following series of “harmless error” cases in the area, namely holdings that affirm a guilty plea, despite omitted judicial advice on deportation, if the defendant actually knew of the potential for deportation: State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. 1993); State v. Issa, 186 Wis. 2d 199, 209, 519 N.W.2d 741 (Ct. App. 1994); State v. Lopez, 196 Wis. 2d 725, 732, 539 N.W.2d 700 (Ct. App. 1995); and State v. Garcia, 2000 WI App 81, ¶1, 234 Wis. 2d 304, 610 N.W.2d 180. Note, too, that the court stresses the requirement that non-English speaking defendants require interpreters at public expense, ¶¶44-45.What, though, if the defendant knows s/he could be deported but is inaccurately told by counsel that s/he won’t be? The issue might then become one of ineffective assistance of counsel, see generally People v. McDonald, 2003 NYSlip Op 18777, 11/24/03, and cases cited [and note, too, the explicit requirement exemplified by that case that there must be an unequivocal “factual allegation that, but for counsel’s error, defendant would not have pleaded guilty”]. But see State v. Gonzales, 134 P.3d 955 (Or. 2006) (advising defendant that he might be deported was IAC, where deportation was near-certainty upon guilty plea; neither counsel nor court required “to specify the likelihood that a particular defendant will be deported”), reversing191 Or App 587, 83 P.3d 921. The idea seems to be that saying nothing about a collateral consequence doesn’t affect validity of the plea, see, e.g., Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L Rev 697, 699 (2002) (no court rejects the principle “that lawyers need not explain collateral consequences”); but misinforming the defendant of a collateral consequence may undermine a guilty plea — though as Gonzales illustrates, fine questions may be raised by the extent of the misinformation required to invalidate the plea.
The deportation door swings both ways: clients get deported into as well as out of the U.S., and it pays to makes sure that former isn’t returned with strings attached, see, e.g.,Benitez v. Garcia, 495 F. 3d 640 (9th Cir. 2007) (Venezuela conditioned Benitez’s extradition for murder on sentence not longer than 30 years; this condition, however, wasn’t enforced in the event).