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SCOW: Judge’s failure to give mandated immigration warning was harmless

State v. Jose Alberto Reyes Fuerte, 2017 WI 104, reversing a published court of appeals decision, 12/19/17; case activity (including briefs)

A judge taking a guilty or no contest plea is required by § 971.08(1)(c) to warn the defendant that if he or she is not a U.S. citizen the plea might result in deportation, inadmissibility, or denial of naturalization. If the judge doesn’t comply with § 971.08(1)(c) and the defendant shows the plea is likely to result in one of those immigration consequences, the defendant can move to withdraw the plea under § 971.08(2)State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, held that harmless error principles don’t apply to § 971.08(2), so the defendant is entitled to withdraw the plea even if the state claims the defendant actually knew the immigration consequences. This decision overrules Douangmala and holds that the judge’s failure to comply with § 971.08(1)(c) in Reyes Fuerte’s case was harmless.

The circuit judge in this case failed to comply with § 971.08(1)(c) in two ways. First, he didn’t use the statutory term “citizen,” and instead told Reyes Fuerte that his plea could result in deportation or inadmissibility if Reyes Fuerte was not a “resident.” For immigration law purposes, the two terms have very different legal implications. Second, the judge didn’t say anything at all about denial of naturalization. (¶¶5, 9-10, 37). Reyes Fuertes also showed his plea made it likely he would be deported. (¶11).

Under Douangmala’s reading of § 971.08(2) Reyes Fuerte was entitled to withdraw his plea regardless of whether he knew about the possible immigration consequences from some source other than the judge. The usual harmless error rule doesn’t apply, Douangmala said, because the plain language of § 971.08(2) provides a mandatory remedy for a specific situation: “If a court fails to advise a defendant as required by sub.(1)(c) and a defendant later shows that the plea is likely to result in the defendant’s deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant’s motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea.”

Five justices now proclaim Douangmala was wrong:

¶32     We hold that Wis. Stat. §§ 971.08(2), 971.26, and 805.18 are most comprehensibly [sic] harmonized by applying harmless error analysis. All of the relevant statutes use “shall,” and, accordingly, none is “more mandatory” than any other. We emphasize that applying harmless error analysis does not facially violate § 971.08(2), but failing to apply harmless error analysis does facially violate §§ 971.26 and 805.18.

¶33     Further, harmless error was plainly codified in the two statutes ignored by Douangmala that we harmonize today, long before Wis. Stat. § 971.08(2) was enacted into law. Wisconsin Stat. § 971.26 was enacted in its current form in 1969, though the concept goes back much further. See § 63, ch. 255, Laws of 1969; Flynn v. State, 97 Wis. 44, 47, 72 N.W. 373 (1897) (referencing “harmless error”). When Wisconsin Stat. § 971.08(2) was created in 1986, the legislature was well aware of the concept of harmless error in criminal proceedings. 1985 Wis. Act 252, §§ 3-4; see Villa Clement, Inc. v. National Union Fire Ins. Co., 120 Wis. 2d 140, 147, 353 N.W.2d 369 (Ct. App. 1984) (presuming the legislature is aware of pre-existing statutes).


¶36     In light of the foregoing, we hold that Douangmala was objectively wrong because it failed to consider the mandatory language in Wis. Stat. §§ 971.26 and 805.18 and thus [we] overrule it. Additionally, we reinstate [State v.] Chavez, [175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. 1993),] [State v.] Issa, [186 Wis. 2d 199, 519 N.W.2d 741 (Ct. App. 1994),] [State v.] Lopez, [196 Wis. 2d 725, 539 N.W.2d 700 (Ct. App. 1995),] and [State v.] Garcia[, 2000 WI App 81, 234 Wis. 2d 304, 610 N.W.2d 180 (Ct. App. 2000),] as valid law and binding precedent. ….

It’s a stretch—indeed, an outright falsehood—to say Douangmala “ignored” §§ 805.18 and 971.26 when the decision in fact cites both statutes at the outset of its ten paragraph explanation of why it was overruling all the harmless-error cases this decision now reinstates. 253 Wis. 2d 173, ¶¶32-42 & n.12. Moreover, the majority in this case ignores and fails to address the fact that § 971.08(2) is, as the dissent explains (¶¶52-55), a specific statute, dealing with a specific error and providing a specific remedy, that therefore should control over the general rule about harmless error. Rouse v. Theda Clark Medical Center, 2007 WI 867, 37, 302 Wis. 2d 358, 735 N.W.2d 30 (where statutes conflict, the specific controls over the general). The majority’s mischaracterization of Douangmala is a way to concoct a rationale for overruling what was, as the dissent points out (¶45), a unanimous opinion—and issued, we might point out, by a court that was in no way a den of wild-eyed criminal defense sympathizers, consisting as it did of Justices Bablitch, Crooks, Sykes, Prosser, and Wilcox, now all gone from the court, along with the two dissenters in this case, Abrahamson and A.W. Bradley. That shows the decision in this case is little more than an exercise in power, not logic, by a new majority.

One practice note: The majority expressly states (¶36 n.15) that this decision doesn’t affect the “substantial compliance” doctrine for determining whether the judge fulfilled his or her duties under § 971.08(1)(c). State v. Mursal, 2013 WI App 125, 351 Wis. 2d 180, 839 N.W.2d 180. So if you’re analyzing whether a trial judge did enough to satisfy § 971.08(1)(c), Mursal and its progeny still control that threshold question.

Having reinstated the harmless error test for a judge’s failure to comply with § 971.08(1)(c), the court finds three reasons to conclude the errors in this case were harmless:

¶38     …. First, defense counsel testified at the plea withdrawal hearing that he went over the Plea Questionnaire/Waiver of Rights form in Spanish with Reyes Fuerte. The form contains language substantially similar to that of Wis. Stat. § 971.08(1)(c)…. Thus, we conclude that Reyes Fuerte had actual knowledge of the potential immigration consequences of his plea and thus the circuit court’s errors were harmless. This is consistent with pre-Douangmala court of appeals decisions applying harmless error to § 971.08(2) [citing Lopez, 196 Wis. 2d at 728-29, and Garcia, 234 Wis. 2d 304, ¶¶3, 14].

¶39     Next, Reyes Fuerte has not alleged ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356 (2010). Padilla held that effective assistance of counsel under the Sixth Amendment requires defense attorneys to inform criminal defendants of the potential immigration consequences of a plea. Id. at 374. We do not hold that the mere lack of a Padilla ineffective assistance claim is sufficient, on its own, to prove actual knowledge and thus harmless error when a circuit court fails to give the advisement as required by Wis. Stat. § 971.08(1)(c). However, the lack of such a claim can be a factor to be included in our consideration to support other facts of record that show actual knowledge and harmless error.

¶40     Finally, we hold the circuit court’s error was harmless because the immigration consequence at issue in this case—deportation—was raised by the circuit court. Reyes Fuerte brought his motion because he was concerned about being deported, not because he was concerned about being denied naturalization. Reyes Fuerte never argues that the advisement given for deportation was deficient in any way. Thus, the circuit court’s error in omitting denial of naturalization is harmless.

In the vast majority of plea cases the record will show the defendant reviewed and signed the standard plea questionnaire form. Thus, as a practical matter the supreme court’s harmless error analysis in ¶38 absolves a trial judge form having to read the text as mandated in § 971.08(1)(c), or even any part of it, and makes the statute a nice bit of surplusage. It appears the only scenario where the plea questionnaire won’t pull the judge’s fat from the fire is where the defendant can make a concomitant Padilla-type claim that trial counsel affirmatively and incorrectly advised the defendant that the plea would not result in any negative immigration consequences.

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