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Counsel was ineffective for failing to properly advise defendant about deportation consequences of plea

State v. Hatem M. Shata, 2013AP1437-CR, District 1, 7/15/14 (not recommended for publication), petition for review granted, 12/18/14, reversed, 2015 WI 74; case activity

Trial counsel was ineffective for failing to inform Shata, an Egyptian foreign national, that pleading guilty to possession of more than 1,000 but less than 2,500 grams of THC with intent to deliver would result in his deportation.

At Shata’s plea hearing his lawyer noted that Shata was not a U.S. citizen and that a conviction created a “potential” he could be deported. (¶5). Counsel didn’t research the immigration consequences, relying instead on conversations with federal prosecutors, none of whom said deportation was mandatory; based on those conversations he told Shata there was a “strong chance” he’d be deported for the conviction. (¶¶7-8).

Applying Padilla v. Kentucky, 559 U.S. 356 (2010), which involved a similar offense (¶¶16-21), and relevant immigration statutes (¶¶22-25), the court of appeals holds counsel’s advice wasn’t good enough:

¶28 …. Defense counsel was aware that deportation was Shata’s primary concern. Counsel had a duty to obtain and provide Shata with accurate information about the deportation consequences of his plea. A reading of the federal statutes, as explained above, establishes that not only is the Attorney General directed to conduct deportation proceedings against a noncitizen convicted of the offense to which Shata pled, but the Attorney General is instructed to expedite those proceedings to insure the person is deported promptly upon completing his incarceration sentence. There is no power given to the Attorney General to waive any of these requirements for Shata’s offense, which constitute both an “aggravated felony” and a “drug offense” under federal law. Defense counsel’s reported casual inquiry of unidentified federal prosecutors does not excuse his obvious failure to even read the applicable federal statutes. Under the applicable federal statute, the deportation consequences for conviction of Shata’s offense, like the consequences of Padilla’s, were in fact dramatically more serious than “a strong likelihood.” Like Padilla’s counsel, counsel’s performance here was deficient when he failed to provide Shata with complete and accurate information about the deportation consequences of his plea.

This deficient performance was prejudicial, applying the standard recently articulated in State v. Mendez, 2014 WI App 57, ___ Wis. 2d ___, ___ N.W.2d __, which looks to all the circumstances of the plea, including the automatic and permanent deportation consequences of the plea, which the trial court discounted given the strength of the state’s case:

¶33 …. The [circuit] court’s explanation [for denying plea withdrawal] demonstrates that it did not believe, in view of counsel’s concession that there was no factual defense, that a rational person would risk a longer sentence after a trial when a shorter sentence was likely to result from a plea bargain. There is no evidence the court considered the personal impact of unavoidable deportation (that not even an official pardon can avoid) on Shata, or that a person in Shata’s circumstances who understood the realities of the deportation process could reasonably prefer delaying deportation by incarceration after trial rather than more expeditious removal from this country. As such, the court did not, as Padilla requires, consider all the circumstances, including the unique personal impact of eventual deportation.

A dissent by Judge Brennan concludes counsel’s advice that there was a “strong likelihood” of deportation is enough under Padilla because it conveyed the essence of federal deportation law, which speaks of “presumptive mandatory” deportation and being “subject to automatic deportation.” (¶¶36-42). Nor is there prejudice because in contrast to Mendez, Shata was given deportation advice, he confessed, he faced more time than Mendez, and he didn’t fear being returned to Egypt, while Mendez feared returning to Mexico. (¶¶43-48). “Because of the likelihood of conviction and prison after a trial, Shata fails to show that it would have been a rational decision for him to reject a plea with a probation recommendation.” (¶49).

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