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Court’s deviation from the exact language of immigration warning in § 971.08(1)(c) doesn’t entitle defendant to plea withdrawal

State v. Ali Mursal, 2013 WI App 125; case activity

Before accepting a defendant’s guilty or no contest plea the court is required to advise the defendant there may be immigration consequences. Wis. Stat. § 971.08(1)(c). While that statute prescribes a text for the required warning—complete with quotation marks—the court of appeals holds in this case that a judge’s failure to repeat that language verbatim is not by itself grounds for plea withdrawal.

In this case the judge’s warning “deviated—very slightly—from the exact language expressed by the statute”—primarily by saying “your plea can result” in the specified immigration consequences instead of “you are advised that a plea of guilty or no contest for the offense with which you are charged may result” in those consequences. (¶14). While the court acknowledges that the statutory language is “strongly preferred” (¶17), but adopts an observation made by the trial judge who denied Mursal’s plea withdrawal motion:

¶19 ….“If a verbatim reading of the statute were required, then even mistaking one word in the statute, no matter how inconsequential … would create a defect which would require the court to withdraw the plea.” (Emphasis added.) We decline to fashion such a rule.

The court holds the linguistic differences in this case “were so slight that they did not alter the meaning of the warning in any way” and the warning therefore “[s]ubstantively … complied perfectly with the statute.” (¶16). This in turn means the statute’s purpose of warning Mursal of the immigration consequences of a conviction “was undoubtedly effectuated” and he is not entitled to plea withdrawal. (¶20).

The standard to be derived from this opinion appears to be that a deviation from the text of § 971.08(2)(c) is not grounds for plea withdrawal if the court’s warning still “substantively” (¶16) or “substantially” (¶20) complies with the statute and “undoubtedly effectuated” its purpose. (¶20). At what point the “linguistic differences” between the warning and the statute are enough to matter will now be the subject of case-by-case litigation, if this decision stands. And it’s not obvious it will. While it “acknowledges” that reading the statute verbatim is “strongly preferred,” the cases it cites for this “preference”–State v. Douangmala, 2002 WI 62, ¶21, 253 Wis. 2d 173, 646 N.W.2d 1; State v. Garcia, 2000 WI App 81, 234 Wis. 2d 304, 610 N.W.2d 180; and State v. Vang, 2010 WI App 118, 328 Wis. 2d 251, 789 N.W.2d 115–suggest a mere preference, strong or otherwise, is not enough. As Vang put it:

¶15      Finally, we reiterate our caution to circuit courts to recite with precision the statutory admonition. In this case, the court nearly, but not quite, stated the deportation warning as prescribed by the statute. In State v. Garcia, 2000 WI App 81, ¶16, 234 Wis. 2d 304, 610 N.W.2d 180, overruled on other grounds by Douangmala, 253 Wis. 2d 173, ¶42, we observed:

WIS[CONSIN] STAT. § 971.08(1)(c) is clear in its directive to the trial courts of this state. The statute not only commands what the court must personally say to the defendant, but the language is bracketed by quotation marks, an unusual and significant legislative signal that the statute should be followed to the letter. While harmless error is sometimes a safety net for trial courts, it is not always a guarantee. We urge all trial courts to follow the express mandate of § 971.08(1)(c).

In Douangmala, 253 Wis. 2d 173, ¶21, the Wisconsin Supreme court agreed with our observation. It also expressly overruled Garcia’s holding that § 971.08(1)(c) was subject to the harmless error rule. Douangmala, 253 Wis. 2d 173, ¶42.

Vang, 328 Wis. 2d 251, ¶15 (emphasis added). The holding that “substantive” or “substantial” linguistic compliance is good enough may be another harmless error rule that cannot stand.

Mursal also challenged his sentence, but the court of appeals concludes the judge sufficiently explained the sentences imposed and that the sentences were not excessive as they were well within the maximum amount allowed by law (60 years out of a possible 160 years maximum, consisting of 40 years of confinement (out of a possible 100) and 20 years ES (out of a maximum of 60)). (¶¶5-7, 21-26).

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