State v. Jose Alberto Reyes Fuerte
2017 WI 104
| Wis. | 2017Background
- Defendant Jose Alberto Reyes Fuerte, a noncitizen in ongoing deportation proceedings, pleaded guilty in 2014 to fleeing/eluding (Wis. Stat. § 346.04(3)) and second-offense OWI involving a restricted controlled substance (Wis. Stat. §§ 346.63, 346.65).
- At the plea hearing the court warned generally that convictions "can" lead to denial of reentry or requirement to leave; it used the word "resident" instead of "citizen" and omitted any mention of "denial of naturalization." A bilingual plea form containing the statutory-style advisement was completed and counsel said he reviewed it in Spanish with defendant.
- After the Seventh Circuit decided Cano-Oyarzabal (2014) that Wis. Stat. § 346.04(3) is a crime of moral turpitude, defendant moved under Wis. Stat. § 971.08(2) to withdraw his pleas, arguing the colloquy failed to comply with the immigration-advisement statute and the pleas likely led to deportation (loss of cancellation of removal).
- The circuit court denied the motion (finding substantial compliance); the court of appeals reversed, finding two substantial deviations from the statutory advisement and remanding for a Bangert hearing on whether the plea caused the loss of cancellation relief.
- The State sought Supreme Court review arguing harmless-error analysis (Wis. Stat. §§ 971.26 and 805.18) applies and Douangmala (2002) should be overruled; the Supreme Court overruled Douangmala, held harmless-error governs, and concluded the circuit court’s errors were harmless as a matter of law.
Issues
| Issue | State's Argument | Reyes Fuerte's Argument | Held |
|---|---|---|---|
| Whether harmless-error statutes apply to plea-withdrawal claims under Wis. Stat. § 971.08(2) | Harmless-error (§§ 971.26, 805.18) applies; Douangmala should be overruled and imperfect advisals assessed for prejudice | Douangmala forbids harmless-error analysis; if statutory advisal and § 971.08(2) conditions met, withdrawal is mandatory | Overruled Douangmala; harmless-error analysis applies and statutes must be harmonized so harmless-error governs § 971.08(2) claims |
| Whether the colloquy materially deviated from the statutory immigration advisement | Deviation may be harmless if defendant had actual knowledge from other sources (e.g., plea form, counsel) | Omission of "denial of naturalization" and using "resident" vs "citizen" were substantial deviations denying statutory protections | Deviations existed but were harmless here because defendant had actual knowledge (form reviewed in Spanish by counsel) and deportation risk was discussed |
| Whether defendant established that the plea was "likely" to result in deportation under § 971.08(2) | The State argued the record did not conclusively show prejudice warranting withdrawal | Defendant argued loss of cancellation of removal made deportation likely, warranting withdrawal and remand for Bangert hearing | Court found no need for remand: on the record, the errors were harmless as a matter of law, so withdrawal denied |
| Whether Padilla ineffective-assistance claim affects harmless-error finding | Harmless-error is supported where no Padilla claim filed and record shows counsel informed client | Defendant could rely on lack of perfect colloquy even absent a Padilla claim | Court held absence of Padilla claim is not dispositive but supports harmless-error here given counsel’s testimony about advising in Spanish |
Key Cases Cited
- State v. Douangmala, 253 Wis. 2d 173 (Wis. 2002) (held harmless-error did not apply to § 971.08(2); overruled)
- State v. Chavez, 175 Wis. 2d 366 (Ct. App. 1993) (applied harmless-error to statutory immigration advisement)
- State v. Lopez, 196 Wis. 2d 725 (Ct. App. 1995) (trial counsel’s review of plea form in Spanish supported harmless-error)
- State v. Garcia, 234 Wis. 2d 304 (Ct. App. 2000) (actual knowledge via counsel/form can render advisement error harmless)
- State v. Valadez, 366 Wis. 2d 332 (Wis. 2016) (describing elements for relief under § 971.08(2))
- Padilla v. Kentucky, 559 U.S. 356 (2010) (Sixth Amendment requires counsel to advise on immigration consequences)
- State v. Bangert, 131 Wis. 2d 246 (Wis. 1986) (procedure for shifting burden on plea-colloquy defects)
- Cano-Oyarzabal v. Holder, 774 F.3d 914 (7th Cir. 2014) (held Wis. Stat. § 346.04(3) is a crime of moral turpitude)