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SCOW to revisit whether judge’s failure to give immigration warning can be harmless

Petition for review of State v. Jose Alberto Reyes Fuerte, 2016 WI App 78, granted 1/18/2017; case activity (including briefs)

Issue presented (from the State’s petition for review):

Now that criminal defense attorneys are obligated to advise their clients about the immigration consequences of their pleas, Padilla v. Kentucky, 559 U.S. 356 (2010), should the Wisconsin Supreme Court overturn its decision in State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, and reinstate the harmless error rule to prohibit a defendant who was aware of the potential immigration consequences of his plea from being able to withdraw the plea just because the circuit court failed to give a statutory immigration warning that complied with Wis. Stat. § 971.08(1)(c)?

As we noted in our post on the court of appeals decision, the state’s argument in the court of appeals consisted of an attack on Douangmala, so we surmised the state would ask the supreme court to review that issue. So it has come to pass.

As the issue statement indicates, the state argues automatic plea withdrawal under § 971.08(2) due to a judge’s failure to comply with § 971.08(1)(c) no longer makes sense now that defense lawyers are supposed to give clients “accurate advice” (PFR at 10) about the immigration consequences of a plea. It also argues that keeping Douangmala’s rule in place allows plea withdrawal even when the defendant actually knew the information the judge failed to provide. But under the supreme court’s crabbed readings of Padilla, a defense lawyer doesn’t have say much to comply with Padilla. And in the years since Douangmala and Padilla the legislature has not amended § 971.08(1)(c) or (2). Thus, there’s been no change in the legislative history that persuaded the Douangmala court that “the legislature intended what the statute explicitly states,” 253 Wis. 2d 173, ¶31. Moreover, “[l]egislative inaction following judicial construction of a statute, while not conclusive, evinces legislative approval of the interpretation,” State v. Eichman, 155 Wis. 2d 552, 566, 456 N.W.2d 143 (1990). Stay tuned to see whether the court will hew to the unchanged statutory language or whether Douangmala’s days are numbered.

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