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SCOW toughens standards for 974.06 postconviction motions and 971.08(2) plea withdrawal motions

State v. Andres Romero-Georgana, 2014 WI 83, 7/23/14, affirming an unpublished court of appeals opinion; majority opinion by Justice Prosser, dissenting opinion by Justice Bradley; case activity

Oliver Wendell Holmes said “hard cases make bad law.”  This decision proves that simple cases can too.  If you thought winning a §974.06 postconviction motion or a § 971.08(2) motion for plea withdrawal due to the trial court’s failure to give deportation warnings was tough before, wait until you read this decision.

Romero-Georgana is a Mexican citizen who pled “no contest” to sexual assault of a child. It is undisputed that, in violation of  §971.08(1)(c), the trial court failed to advise him of the deportation consequences of entering a plea. Romero-Georgana was sentenced to 12 years initial confinement and 4 years extended supervision.  His first postconviction lawyer (let’s call her “PC1”) did not raise this particular claim.  She argued a different, meritorious claim: the sentencing court failed to consider the sentencing guidelines on the record, as was then required by statute.  She prevailed in the court of appeals and won a resentencing hearing, where Romero-Georgana was represented by a new lawyer, who requested and received a a substitution of judge.

Hindsight being 20-20, that proved to be a bad move.  The new judge nearly doubled Romero-Georgana’s sentence to 20 years of initial confinement and 10 years of extended supervision.  Romero-Georgana then received a second postconviction lawyer (we’ll call her “PC2”) who argued that PC1 had provided ineffective assistance of counsel by failing to inform him that the original judge could not have increased his sentence (absent a new factor), whereas a new judge could increase his sentence without the same limitations.  PC2 lost and filed a no-merit report, to which  Romero-Georgana responded.  He raised an issue regarding his “no contest plea” and lost.  He filed a petition for review and lost. Undeterred, he filed a pro se §974.06 postconviction motion, which argued that the trial court failed to advise him of the deportation consequences of his plea and that “postconviction counsel” was ineffective for failing to raise this issue. His defeat on this motion led to SCOW, which granted his pro se petition for review and took the unusual step of appointing counsel.  (Round of applause for Remington Center Attorneys Sara Brelie and Byron Lichstein for taking it!)

This could have been a simple case, but the majority turned it into a “wide-ranging discussion of postconviction procedure,” which, unfortunately, resulted in “wide-ranging” and harsh consequences for noncitizens, pro se litigants, and anyone filing a 974.06 motion.   Here are the key holdings:

State v. Starks, 2013 WI 69 (which held that a defendant alleging ineffective assistance of appellate counsel for failing to raise certain issues must show that those issues were “clearly stronger” than the one appellate counsel actually argued) also applies to postconviction counsel.  A claim’s strength may be bolstered if the defendant directed his attorney to pursue it. Slip op. ¶4.  (More on Starks here.) In addition, the defendant must allege sufficient facts (who, what , where, when, why and how), which, if true, would entitle him to relief. Slip op.  ¶58.

A defendant filing a §974.06 motion must offer a “sufficient reason” for failing to raise his claim in one of his earlier motions (under 974.02 or 809.30).  Slip op. ¶74.  Here, that means that Romero-Georgana’s pro se §974.06 motion had to allege (with specificity) that (1) PC2 was ineffective for failing to allege that PC1 was ineffective for failing to raise the plea withdrawal claim, and (1) PC1 was ineffective for failing to raise the plea withdrawal claim in the first postconviction motion.  Keep in mind that Romero-Georgano is indigent, requires an interpreter, and in the majority opinion’s own words:  “faced an unusually complicated situation when he filed his third postconviction motion.” Slip op. ¶55.

A §974.06 motion alleging ineffective assistance of postconviction counsel must “specifically state which postconviction attorney was ineffective.” Here, Romero-Georgana failed to specify his attorney.  He used the generic term “postconviction counsel.”  Slip op. ¶52-53.  So he lost.

Given Wisconsin’s longstanding policy of construing pro se pleadings liberally–to the point of re-labeling them, if necessary– this is a really harsh holding.  See Bradley’s dissent (joined by Abrahamson), Slip op. ¶¶107-108.  Justice Bradley points out that this case could and should have been resolved on  §971.08(1) and (2) alone.  The statute says the trial court “shall” advise a defendant of deportation consequences when entering a guilty plea, and if it fails to do so it “shall vacate” the judgment and “permit the defendant to withdraw the plea.”  The defendant, she argues, need not bring raise the §971.08(2) motion within a a §974.06 motion.  And §971.08(2) imposes no time limits.  ¶¶90-91.  So Romero-Georgano should have won simply under §971.08(2).  Never mind §974.06 and its impossible hurdles.

There is plenty of room for further litigation on these matters.  It could be argued that the majority did not require all future “post direct appeal” 971.08(2) motions within §974.06.  It only did that in this case because Romero-Georgana (the indigent, non-English speaking litigant) made the mistake of citing §974.06 in his pro se motion and in his pro se petition for review, and SCOW made the mistake ordering the lawyers it appointed to limit their merits briefs to the issues presented in the pro se petition.  See ¶67 fn.  So this decision may be limited to the unique circumstances of this case.



{ 1 comment… add one }
  • Robert R. Henak July 25, 2014, 6:33 am

    There are a number of rather obvious mistakes in this decision in addition to those noted by On Point. First is the Court’s decision to extend the mistake it made in Starks by substituting a novel “clearly stronger” standard for the “reasonableness” standard consistently required by the U.S. Supreme Court for the past 30 years. At least this new standard should make federal habeas relief easier to get since any state court decision relying on this new standard will satisfy the federal “contrary to or an unreasonable application of” controlling Supreme Court precedent requirement for habeas relief.

    Second, the Court (and apparently the pro se defendant) overlooked the fact that there were not two prior appeals for purposes of 974.06(4). Because the defendant WON the first appeal, resulting in vacation of his original sentence and resentencing, the applicable judgment is the second one. He took a direct appeal from that judgment and that appeal is the only one of any relevance for 974.06(4) purposes. Unfortunately, the Spanish-speaking pro se defendant apparently did not understand that.

    Third, the Court erroneously suggests, although it does not hold, that there is some kind of time limit or Escalona-type limitation on s. 971.08(2) motions. There is not. As a statutory remedy, unlike an equitable remedy like habeas, the limitations are restricted to those imposed by the Legislature. 974.06(4) is limited to motions filed under 974.06. A 971.08(2) provides an independent basis for relief that need not (and should not) go through the 974.06 process and does not have any statutory time limit.

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