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State v. Andres Romero-Georgana, 2012AP55, petition for review granted 12/19/13

Review of unpublished per curiam court of appeals decision; case activity

Issues (composed by On Point)

Whether the defendant’s Wis. Stat. § 974.06 postconviction motion, which alleged postconviction counsel was ineffective for failing to raise a plea withdrawal claim on direct appeal, contained sufficient allegations to warrant an evidentiary hearing.

Whether postconviction counsel was ineffective under the standard set forth in Smith v. Robbins, 528 U.S. 259 (2000) (to show postconviction counsel was deficient, defendant must generally demonstrate counsel ignored an issue that was “clearly stronger” than the issues raised on direct appeal in order).

The petition for review is not electronically available, so the statement of the issues has been deduced based on the particulars of the case considered in light of the court’s recent cases addressing § 974.06 motions that allege ineffective assistance of postconviction or appellate counsel to avoid application of the serial-litigation bar. Those recent cases are State v. Balliette, 2011 WI 79, 336 Wis. 2d 358, 805 N.W.2d 334, which addressed the pleading requirements, and State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, which also addressed the standard under Robbins. Perhaps the court accepted review to address shortcomings in those opinions (some of which are discussed here and here). Then again, perhaps this case provides the opportunity for the court to address a situation different from those in Balliette and Starks. Understanding how this case is different necessitates a primer on the multiple post conviction proceedings in this case.

Romero-Georgana pleaded guilty to child sexual assault and was sentenced to prison. (¶2). On direct appeal he sought resentencing by filing a § 809.30 postconviction motion arguing the judge failed to consider the sentencing guidelines that were then in place. (¶3). After the circuit court denied the motion he appealed, and the court of appeals ordered resentencing. (¶3). Before resesntencing his lawyer filed for substitution under § 971.20(7); the new judge imposed a longer sentence. (¶4). His direct appeal from the resentencing involved another postconviction motion (filed by a new postconviction lawyer) arguing prior counsel was ineffective for substituting the trial judge after the successful appeal. (¶4). After that motion was denied his lawyer filed a no merit report, which was accepted. (¶4). Romero-Georgana later filed the § 974.06 motion, arguing his first post conviction lawyer was ineffective for failing to argue that he was entitled to plea withdrawal because: 1) at the plea hearing the judge didn’t advise him of the potential deportation consequences of his plea, and now he’s likely to be deported; and 2) his original trial lawyer didn’t advise him he might be deported, and if she had he would have gone to trial instead of entering a plea. (¶¶1, 4).

The court of appeals affirmed the trial court’s holding that Romero-Georgana’s motion didn’t sufficiently allege how his first postconviciton lawyer was ineffective. Citing Robbins, the court of appeals concluded that the plea withdrawal issue wasn’t clearly stronger than the resentencing issue; after all, counsel succeeded on appeal in getting resentencing, even though the ultimate result was detrimental. (¶6). The court also decided counsel had a legitimate strategic reason for seeking resentencing instead of plea withdrawal: Counsel reasonably calculated that resentencing would likely result in a shorter sentence under the applicable sentencing guideline, while plea withdrawal would have allowed the state to bring charges it agreed to forego as part of the plea deal, or ask for more time than allowed under the plea deal, or both. (¶7).

The court of appeals’ application of Robbins is problematic. To see why, return to Balliette and Starks for a moment. In those cases the defendants’ overarching (if not only) goal in pursuing postconviction relief was to obtain a new trial, and their IAC claims were allegations that postconviction counsel failed to raise issues or arguments that would have advanced that goal. Balliette, 336 Wis. 2d 358, ¶¶10-15; Starks, 349 Wis. 2d 274, ¶¶66-73. The “clearly stronger” standard applies straightforwardly enough in that situation, for it essentially focuses on whether the issue that was not raised would have more likely achieved the goal of being granted a new trial. But Romero-Georgana’s case illustrates that a case may present multiple issues that relate to distinctly different goals. In his case, there was an issue that allowed him to pursue resentencing, and he now claims there was an issue that provides a basis for pursuing plea withdrawal. That is a very different objective than resentencing, presenting a distinct remedy and different, usually greater risks, as the court of appeals noted. When issues in a case relate to such different goals, the “clearly stronger” test can’t be used to justify postconviction counsel’s decision to pursue one goal over other possible goals because the client, not the lawyer, gets to choose the goals. State v. Debra A.E., 188 Wis. 2d 111, 125-26, 523 N.W.2d 727 (1994) (“The client must decide whether to file an appeal and what objectives to pursue, although counsel may decide what issues to raise once an appeal is filed” (emphasis added)); see also Jones v. Barnes, 463 U.S. 745, 751 (1983).

Thus, contrary to the court of appeals’ conclusion (¶7), it is irrelevant that Romero-Georgana’s motion fails to address postconviction counsel’s “strategic” reason for choosing resentencing over plea withdrawal. That was not a choice for counsel to make. Similarly, it doesn’t make sense to compare the strength of Romero-Georgana’s plea withdrawal claim to his resentencing claim. (¶6). Instead, the question is whether postconviction counsel missed or somehow misadvised Romero-Georgana about the possible grounds for plea withdrawal–and therefore a potential goal of the representation–and whether he would have pursued that goal either in place of, or in addition to, the goal of resentencing. Maybe his motion is, as the court of appeals concluded (¶6), deficient in alleging prejudice–i.e., that despite the risks he would have pursued plea withdrawal had he been correctly advised about the issue. Nonetheless, the supreme court should at least correct the erroneous notion that postconviction counsel can “strategically” supersede the client’s right to choose between the disparate remedies that might be available on appeal.

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