State v. Andres Romero-Georgana, 2014 Wisc. LEXIS 688

Background

Romero-Georgana, a non‑citizen, pled no contest in 2006 to first‑degree sexual assault of a child; the plea colloquy did not include the mandatory statutory deportation warning.
He was sentenced in 2007; the sentencing court also failed to state sentencing guidelines on the record, leading to an appellate remand and resentencing in 2008 with a longer term.
Three postconviction steps followed: (1) Hagopian represented him in the first postconviction motion (resentencing claim), (2) Dommershausen filed a second postconviction § 974.02 motion (challenging advice about judicial substitution, not plea withdrawal), and (3) Romero‑Georgana filed a pro se § 974.06 motion in 2011 alleging postconviction counsel ineffective for failing to seek plea withdrawal under § 971.08(2).
The circuit court denied the § 974.06 motion as conclusory and insufficient to require an evidentiary hearing; the court of appeals affirmed.
The Wisconsin Supreme Court granted review and affirmed: the § 974.06 motion was both procedurally barred (no sufficient reason for not raising the claim earlier) and substantively insufficient (failed to identify which postconviction counsel was ineffective or plead facts showing the plea‑withdrawal claim was clearly stronger than the claims actually pursued).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a § 974.06 motion alleging ineffective assistance of postconviction counsel must show the omitted claim was “clearly stronger” than claims counsel raised	Romero‑Georgana: postconviction counsel was ineffective for not raising plea‑withdrawal under § 971.08, entitling him to relief	State: apply Starks/Strickland framework; movant must plead adequacy and comparative strength	Held: Yes — when counsel raised other issues, movant must plead the omitted claim was clearly stronger (Starks standard), and defendant’s filings failed to do so
Whether Romero‑Georgana offered a sufficient reason under § 974.06(4)/Escalona‑Naranjo for not raising the plea‑withdrawal claim earlier	Romero‑Georgana: ineffective assistance of postconviction counsel provides the sufficient reason	State: movant must identify which postconviction counsel and plead facts showing each counsel’s ineffectiveness; otherwise claim is barred	Held: Barred — motion failed to identify or allege ineffective assistance by the specific postconviction attorney who omitted the claim (both prior postconviction attorneys had to be addressed)
Whether the § 974.06 motion pleaded sufficient material facts to require an evidentiary hearing	Romero‑Georgana: alleged trial and postconviction counsel failures, language barriers, and an immigration detainer, so an evidentiary hearing is needed	State: allegations were conclusory, focused on trial counsel, and did not allege who or how postconviction counsel erred or how movant would prove prejudice	Held: Motion insufficient — lacked who/what/when/where/why/how facts; circuit court did not err in denying a hearing
Whether, independently, the statutory remedy for failure to give deportation warning (§ 971.08(2)) required plea withdrawal despite procedural posture	Romero‑Georgana (and dissent): § 971.08(2) mandates vacatur and plea withdrawal if court failed to advise and plea likely leads to deportation; label of motion should not block relief	State (majority): § 974.06 procedural rules and Escalona‑Naranjo apply to successive postconviction claims; movant must meet § 974.06 pleading requirements	Held: Majority did not treat the claim as a standalone § 971.08(2) motion because Romero‑Georgana brought § 974.06 and failed to satisfy its requirements; dissent argued statutory text mandates withdrawal

Key Cases Cited

State v. Starks, 349 Wis. 2d 274 (2013) (adopts "clearly stronger" standard for evaluating counsel's failure to raise an issue)
State v. Escalona‑Naranjo, 185 Wis. 2d 168 (1994) (§ 974.06 bars relitigation absent sufficient reason)
Strickland v. Washington, 466 U.S. 668 (1984) (two‑part ineffective assistance test: deficiency and prejudice)
State v. Balliette, 336 Wis. 2d 358 (2011) (pleading sufficiency for § 974.06 motions and entitlement to an evidentiary hearing)
State v. Douangmala, 253 Wis. 2d 173 (2002) (§ 971.08(2) remedy discussed; mandatory language interpreted)
State v. Negrete, 343 Wis. 2d 1 (2012) (post‑Padilla discussion and § 971.08(2) standards)