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Defendant’s own misunderstanding about collateral consequence didn’t taint plea

State v. Miguel Angel Langarica, 2015AP1546, 4/21/16, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Langarica’s misunderstanding about whether the conviction would require him to register as a sex offender under Illinois law doesn’t entitle him to withdraw his plea because he didn’t prove the misunderstanding was based on incorrect information from his trial lawyer.

Langarica was charged with various crimes, including second degree sexual assault, but was offered a deal to plead to fourth degree sexual assault. He wouldn’t plead to any crime that would require him to register as a sex offender, and after researching the question his attorney assured him a fourth degree sexual assault wouldn’t require him to register—under Wisconsin law. He took the deal, but later moved to withdraw his plea, alleging it was based on a misunderstanding about whether the conviction would require him to register as a sex offender in Illinois. (¶¶2-4, 11-12).

Under State v. Brown, 2004 WI App 179, ¶¶8, 13, 276 Wis. 2d 559, 687 N.W.2d 543, a defendant may withdraw a plea that was based on a misunderstanding of the collateral consequences of the conviction if the misunderstanding was not the product of the defendant’s own inaccurate interpretation, but was based on affirmative, incorrect statements by the defendant’s lawyer. In this case trial counsel understood that sex offender registration was “a deal breaker” for Langarica, so he advised him about the consequences under Wisconsin law; but he didn’t recall telling Langarica about what might happen in Illinois, as he is not licensed in Illinois. (¶11). For his part, Langarica testified that trial counsel “never said anything that … would make [him] worry that it was a different law in Illinois.” (¶12). This isn’t enough to show that Langarica’s misunderstanding was based on incorrect information from his lawyer:

¶13      Langarica does not allege that his trial counsel gave him incorrect information as to Illinois law on sex offender registration. Langarica alleges only that trial counsel did not give him any information as to Illinois law. Nothing in the record suggests that Langarica ever asked his trial counsel about sex offender registration requirements under Illinois law, and nothing in the letter from trial counsel to Langarica suggested that Langarica would not be required to register as a sex offender under Illinois law. Thus, contrary to Langarica’s contention, the facts here are not comparable to those in Brown, where affirmative, incorrect statements misinformed the defendant.

So trial counsel knew that sex offender registration was a “deal breaker” for Langarica. And, according to Langarica’s brief (at 8), trial counsel knew Langarica was an Illinois resident. In light of that knowledge, and given the lack of evidence that trial counsel affirmatively misinformed Langarica, maybe the issue is whether trial counsel was ineffective for failing to either: (a) do some research to determine whether Langarica would have to register under Illinois law; or (b) at least advise Langarica that Wisconsin law isn’t necessarily the same as Illinois law, and that he might indeed have to “worry” about registering in Illinois.

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