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Motion to withdraw Plea – Deportation Consequences, § 971.08(2) – Pleading Requirements

State v. Abraham C. Negrete, 2012 WI 92, affirming summary order; case activity

Negrete’s motion to withdraw his 1992 guilty plea, on the ground that he wasn’t personally advised of deportation consequences, § 971.08(2), was denied by the circuit court without a hearing. The court upholds that result:

¶2   In support of his motion, Negrete stated in an affidavit that he “do[es] not recall” whether the plea-accepting court advised him of the potential deportation consequences of his plea.[3]  Negrete’s affidavit also states that he is now subject to deportation proceedings. However, Negrete’s plea questionnaire indicates that he was advised of the immigration consequences prior to making his plea.

¶3   We conclude that Negrete’s allegations are insufficient to warrant an evidentiary hearing.  Where a defendant seeks to withdraw a guilty plea under Wis. Stat. § 971.08(2), but there is no transcript of the plea hearing, the pleading requirements for such motions are those set forth in State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996).  Under the applicable Bentley-type standard, Negrete’s affidavit has not alleged sufficient facts that, if true, would entitle him to withdraw his guilty plea.  Specifically, Negrete has failed to sufficiently allege that the plea-accepting court did not tell him of the potential immigration consequences of his plea.  In addition, his motion fails to allege sufficient facts demonstrating a causal nexus between his guilty plea and the likelihood of any immigration consequences.  Therefore, Negrete’s motion to withdraw his guilty plea under § 971.08(2) was properly denied.

Largely because of the age of the case, along with Negrete’s decision following sentencing not to seek postconviction relief, a transcript of the plea proceeding is unavailable, and that appears to be why the court applies Bentley, rather than Bangert-type, methodology, ¶¶30-33. (“Accordingly, where a defendant is unable to point to a defect evident on the face of a plea colloquy transcript because such transcript is unavailable, the more appropriate review of a motion to withdraw a guilty or no contest plea under Wis. Stat. § 971.08(2) is that set forth in Bentley, 201 Wis. 2d at 310,” ¶33.)

The statute requires, the court stresses, that the defendant allege lack of advice; under Bentley analysis, an allegation of lack of recall falls short:

¶24  First, Wis. Stat. § 971.08(2) requires a defendant to allege that the plea-accepting court “fail[ed] to advise [the] defendant as required by [§ 971.08(1)(c)].”  Therefore, a defendant must affirmatively assert that the plea-accepting court did not tell the defendant of the potential immigration consequences of his plea.  See § 971.08(2).  A defendant’s allegation that he does not recall whether the judge told him of the potential immigration consequences of his plea, or that it is possible that the judge might have failed to do so, does not allege facts that, if true, would entitle the defendant to relief.  See Hampton, 274 Wis. 2d 379, ¶55.

¶25  Such inconclusive assertions as “I do not recall” will not support plea withdrawal ….

Negrete’s motion explicitly alleged that the guilty plea-court “did not inform [him], on the record, of the immigration consequences,” ¶35. However, Negrete’s accompanying affidavit provided the embellishment that he did “not recall” whether he’d received the necessary warning, id. The court cautions that assertions in an affidavit “supplant” those in the pleading, so the motion fails on its face, id.

There is a second pleading requirement, related to likelihood of deportation or immigration consequences: “This requires that the defendant allege facts demonstrating a causal nexus between the entry of the guilty or no contest plea at issue and the federal government’s likely institution of adverse immigration actions consistent with § 971.08(1)(c).  Bare allegations of possible deportation are insufficient,” ¶26. Negrete’s allegation that he “is now the subject of deportation proceedings” is, the court holds, just such a “bare” allegation and thus insufficient to show likelihood of deportation, ¶36. The court adumbrates ways to overcome this pleading hurdle (also see, ¶27):

¶37  To comply with the Bentley-type pleading standard in the context of Wis. Stat.§ 971.08(2), a defendant may set forth the crime of conviction, the applicable federal statutes establishing his potential deportability, and those facts admitted in his plea that bring his crime within the federal statutes.  In so doing, a defendant may submit some written notification that the defendant has received from a federal agent that imports adverse immigration consequences because of the plea that was entered; or, a defendant may narrate verbal communications that the defendant has had with a federal agent advising that adverse immigration consequences were likely and that such consequences were tied to the crime for which the plea was entered.  A defendant’s motion should not require the circuit court or a reviewing court to speculate about the factual basis for the requisite nexus.

The forceful, two-justice dissent, ¶¶42-81, won’t be summarized here, except to highlight that the majority offers no reason why Negrete shouldn’t be given the opportunity to amend his pleading, ¶¶78-80.

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