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Plea withdrawal claims rejected

State v. Erika Lisette Gutierrez, 2014AP1983-CR, 3/7/2017 (not recommended for publication); case activity (including briefs)

Gutierrez pleaded guilty to intentional physical abuse of a trial and had a bench trial on her plea of not guilty by reason of mental disease or defect. She asserts she should be allowed to withdraw her guilty plea because the circuit court didn’t give the full § 971.08(1)(c) immigration warning and because her plea was premised on incorrect advice from her lawyer. The court of appeals disagrees.

During the guilty plea colloquy the court warned Gutierrez that “your plea could result in deportation, exclusion or denial of naturalization[.]” (¶¶8, 21). This omitted the five words that follow “exclusion” in § 971.08(1)(c): “from admission to this country.” Verbatim recitation of the statutory warning isn’t necessary, however, so long as the court “substantially complied” with § 971.08(1)(c) by sufficiently notifying a non-citizen defendant of the potential immigration consequences of a criminal conviction. State v. Mursal, 2013 WI App 125, ¶20, 351 Wis. 2d 180, 839 N.W.2d 173. The warning in this case was sufficient:

¶22     …. The warning Gutierrez received starts by saying it applies to anyone “who is not a citizen of the United States” and includes the words “deportation” and “denial of naturalization.” In this context, the word “exclusion” in the warning is clearly referring to exclusion from the United States. Further, even when those words are omitted, the meaning is not changed. “Exclusion” in this context does not have a different meaning than “exclusion from admission to this country.” We conclude that even with these words omitted, the statute’s purpose was effectuated, and the omitted words “did not alter the meaning of the warning in any way.” See Mursal, 351 Wis. 2d 180, ¶20. We therefore conclude that the trial court complied with the statutory mandate. ….

Gutierrez also claims her plea was involuntary because her trial lawyer affirmatively misinformed her that the trial court wouldn’t view a highly inculpatory video showing her engaged in the criminal conduct if she pleaded guilty. But the state showed the video (over defense objection) during the responsibility phase. (¶¶3, 4, 14, 17). She argues her case is like others where the defendant pleaded guilty under a misapprehension of the consequences of the plea due to trial counsel’s inaccurate advice—specifically, State v. Brown, 2004 WI App 179, ¶¶8, 10, 276 Wis. 2d 559, 687 N.W.2d 543, State v. Riekkoff, 112 Wis. 2d 119, 128, 332 N.W.2d 744 (1983); and State v. Woods, 173 Wis. 2d 129, 141, 496 N.W.2d 144 (Ct. App. 1992). This case is different:

¶27     First, [Gutierrez’s argument] is based on the faulty premise that the viewing of the video by the trial court, which happened after her plea, is a consequence of her plea. The fact that something follows something else does not make the first thing a cause of the second. Cases have categorized consequences as direct and consequential, but we do not find any that defines the word “consequence.” Consequence is defined as “[s]omething that logically or naturally follows from an action or condition” and “[t]he relation of a result to its cause.” American Heritage Dictionary 401 (3d ed. 1992). In each of the cases she cites, the defendant experienced a consequence—a result caused by his guilty plea and something that logically and legally followed from it. See Brown, 276 Wis. 2d 559, ¶10 (effect of no-contest plea was that defendant was subject to sex offender registration); Riekkoff, 112 Wis. 2d at 127 (effect of guilty plea was loss of right to appellate review of certain issues notwithstanding defendant’s and State’s stipulation to the contrary); and Woods, 173 Wis. 2d at 140 (effect of plea was a legally impossible sentence to which both counsel and the trial court had agreed). Each case is based on not just a logical or common consequence, but one that the law requires.

¶28     In this case, by contrast, the viewing of the video was not an action required by law in response to Gutierrez’s plea. The plea itself was to the first phase—guilt. The court did not view the video as part of the plea in that first phase. Had Gutierrez stipulated to mental responsibility, instead of merely waiving a jury, the video may not have been offered or viewed. But in no way was the viewing of the video something that legally was required to follow from the plea to the guilt phase, and in that respect the cases relied on by Gutierrez offer no support for her argument at all.


¶30     Second, in each of those cases, the appellate court pointed out that the trial court had either “acquiesced” in the affirmative misrepresentation by both counsel, see Brown, 276 Wis. 2d 559, ¶8, and Riekkoff, 112 Wis. 2d at 129, or had joined counsel in affirmatively misinforming the defendant regarding the consequences, see Woods, 173 Wis. 2d at 140. There is no indication in the record that the trial court here was aware of or acquiesced in any representation to Gutierrez that her guilty plea in phase one would prevent the trial court from viewing the video in phase two. ….

Alternatively, Gutierrez argues trial counsel’s mistaken advice constituted ineffective assistance of counsel. This argument fails because she can’t establish prejudice. There is no reasonable probability Gutierrez would have insisted on going to trial where the video would certainly be viewed by the fact-finder and where she would have been convicted because of the overwhelming evidence against her. (¶¶31-37).

Finally, Gutierrez argues for a new trial in the interest of justice, but that is dispensed with in a fact-specific discussion that concludes the real controversy was tried. (¶¶38-43).

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