on review of summary order (District 2); for Negrete: Jeffrey W. Jensen; case activity
Plea Withdrawal – Collateral Attack – Deportation Consequences
Issues (Composed by On Point):
1. Whether the laches doctrine bars Negrete’s motion to withdraw his guilty plea, 18 years after he entered it.
2. Whether Negrete’s assertion that he didn’t know his plea exposed him to deportation entitles him to a hearing on his motion.
From the briefs: Negrete pleaded guilty to second-degree sexual assault in 1992; he received probation, the term expiring in 1994. In 2010 he filed a motion to withdraw, asserting that he “is currently the subject of immigration proceedings,” and that he when he entered the plea didn’t know its “immigration consequences.” The trial court denied the motion without a hearing, in part because the plea questionnaire reflected that counsel had in fact informed Negrete of the immigration consequences of his plea. The plea transcript isn’t available, the court reporter having died in the interim. Negrete argued, at least in the court of appeals, that under caselaw controlling at the time of his plea, “if it were established that the court failed to give the defendant the statutory warning, … the defendant was required to establish that he did not have independent knowledge of the immigration consequences … before he would be permitted to withdraw his plea. See, e.g., … State v. Issa, 186 Wis. 2d 199, 209-210, 519 N.W.2d 741 (Ct. App. 1994).” He argues that in the absence of a transcript, his allegations accompanying the plea-withdrawal motion create an issue of fact that must be resolved by an evidentiary hearing. The State argues that the 18-year delay in bringing the motion is barred by the laches doctrine, Coleman v. McCaughtry, 2006 WI 49, ¶¶ 28-29, 290 Wis. 2d 352, 714 N.W.2d 900. The State goes on to argue that, on the merits, the trial court’s “finding of fact” based on the plea questionnaire, that Negrete was aware of deportation consequences, defeats his request for a hearing.
Nergrete’s sentence is long-expired, and when the defendant is no longer in custody, the court is “without jurisdiction” to entertain his § 974.06 motion, State v. Theoharopoulos, 72 Wis.2d 327, 240 N.W.2d 635 (1976). Yet, the State here doesn’t complain about absence of custody; indeed, the matter excites insufficient interest even to merit discussion. Possibly, the idea that Negrete is in custody by virtue of an impending deportation occasioned by this very conviction is so compelling that no discussion is necessary. In any event, the “substantive” issue (plea-withdrawal) appears to be exquisitely narrow and likely to affect a very small number of potential litigants: whether Negrete is entitled a hearing under caselaw principles that were overruled in 2002, State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1. That is, it appears that, even though the consequence of deportation very much lies at the heart of this litigation, its resolution will not address Padilla v. Kentucky, or advance discussion of the direct / collateral consequences divide.