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State v. Melisa Valadez, 2014AP678-680, certification granted 3/16/15

On certification by the court of appeals; review granted 11/26/13; circuit court reversed 1/29/16; click here for docket and briefs

Issue (composed by the court of appeals):

How definite or imminent must deportation be in order for it to be “likely,” such that a defendant may withdraw a guilty or no contest plea on the basis that he or she was not informed of the immigration consequences at the plea colloquy?  If, in order to withdraw the plea, the defendant must show that deportation proceedings are underway, how does this standard fit in with the time limits for a motion to withdraw the plea?

As noted in our earlier post, the circuit court failed to give Valadez the §971.08 warning that her guilty plea might have adverse immigration consequences. Nevertheless, the circuit court refused to let her withdraw her guilty plea because deportation proceedings weren’t actually underway. So the questions are: (1) what must the defendant show in order to obtain plea withdrawal, and (2) is there a time limit for filing this type of plea withdrawal motion? SCOW’s decision in Romero-Georgana last term suggested that there is a deadline. But if the defendant must wait for the government to commence actual deportation proceedings before filing her motion that could create a Catch-22. See Certification at 11. Briefing for this case will begin 30 days after SCOW decides 2 other pending cases concerning a defendant’s right to plea withdrawal based upon his lawyer’s failure to advise him that his plea would have adverse immigration consequences. See our post re State v. Shata and State v. Ortiz-Mondragon. These cases will be argued on April 21, 2015.

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