on review of summary order (District 2); for Negrete: Jeffrey W. Jensen; case activity
Plea Withdrawal – Collateral Attack – Deportation Consequences
Issues (Composed by On Point):
1. Whether the laches doctrine bars Negrete’s motion to withdraw his guilty plea, 18 years after he entered it.
2. Whether Negrete’s assertion that he didn’t know his plea exposed him to deportation entitles him to a hearing on his motion.
From the briefs: Negrete pleaded guilty to second-degree sexual assault in 1992; he received probation, the term expiring in 1994. In 2010 he filed a motion to withdraw, asserting that he “is currently the subject of immigration proceedings,” and that he when he entered the plea didn’t know its “immigration consequences.” The trial court denied the motion without a hearing, in part because the plea questionnaire reflected that counsel had in fact informed Negrete of the immigration consequences of his plea. The plea transcript isn’t available, the court reporter having died in the interim. Negrete argued, at least in the court of appeals, that under caselaw controlling at the time of his plea, “if it were established that the court failed to give the defendant the statutory warning, … the defendant was required to establish that he did not have independent knowledge of the immigration consequences … before he would be permitted to withdraw his plea. See, e.g., … State v. Issa, 186 Wis. 2d 199, 209-210, 519 N.W.2d 741 (Ct. App. 1994).” He argues that in the absence of a transcript, his allegations accompanying the plea-withdrawal motion create an issue of fact that must be resolved by an evidentiary hearing. The State argues that the 18-year delay in bringing the motion is barred by the laches doctrine, Coleman v. McCaughtry, 2006 WI 49, ¶¶ 28-29, 290 Wis. 2d 352, 714 N.W.2d 900. The State goes on to argue that, on the merits, the trial court’s “finding of fact” based on the plea questionnaire, that Negrete was aware of deportation consequences, defeats his request for a hearing.
Nergrete’s sentence is long-expired, and when the defendant is no longer in custody, the court is “without jurisdiction” to entertain his § 974.06 motion, State v. Theoharopoulos, 72 Wis.2d 327, 240 N.W.2d 635 (1976). Yet, the State here doesn’t complain about absence of custody; indeed, the matter excites insufficient interest even to merit discussion. Possibly, the idea that Negrete is in custody by virtue of an impending deportation occasioned by this very conviction is so compelling that no discussion is necessary. In any event, the “substantive” issue (plea-withdrawal) appears to be exquisitely narrow and likely to affect a very small number of potential litigants: whether Negrete is entitled a hearing under caselaw principles that were overruled in 2002, State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1. That is, it appears that, even though the consequence of deportation very much lies at the heart of this litigation, its resolution will not address Padilla v. Kentucky, or advance discussion of the direct / collateral consequences divide.
Bill, the defendant in this circumstance is authorized to file the motion to withdraw the plea under s.971.08(2) without regard to whether he or she is in custody. Jeff, indeed, based his argument on s.971.08(2).
Incidentally, since this is a statutory remedy, the equitable defense of laches would not logically apply. It also would not rationally apply because (at least absent evidence that the offense per se requires removal) the cause of action for withdrawal of the plea is not ripe until removal proceedings are threatened or commenced.
Thanks for the insightful comment, Rob. Your point about inapplicability of laches is excellent. As you suggest, there is a strong argument that there are no jurisdictional requirements such as custody or time limitations in the 971.08(2) statutory text (“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”). It follows, because the motion isn’t encumbered by any temporal limitations, that the legislature has therefore determined that laches is inapplicable. Negrete made something like this argument in his reply brief, but it’ll have to be developed at greater length now, including an analysis of the statutory text and any relevant legislative history. Is there any caselaw discussing whether 971.08(2) itself supports a postconviction motion? If not, this one will, or at least should, be the first.