State v. Reyes Fuerte
887 N.W.2d 121
Wis. Ct. App.2016Background
- Defendant Jose Alberto Reyes Fuerte pled guilty in Feb. 2014 to felony fleeing/attempting to elude an officer and a misdemeanor DUI with a controlled substance (second offense).
- Wisconsin statute § 971.08(1)(c) requires a specific advisement about immigration consequences: that non-citizens may face deportation, exclusion from admission, or denial of naturalization.
- At the plea hearing the circuit court deviated from the statutory language, telling Reyes Fuerte that non-"residents" (not non-"citizens") could be denied re-entry or required to leave; the court also omitted mention of "denial of naturalization."
- Reyes Fuerte moved to withdraw his pleas under Wis. Stat. § 971.08(2), alleging the court failed to give the required advisement and that his fleeing conviction likely caused deportation by eliminating a cancellation-of-removal defense in preexisting deportation proceedings.
- The circuit court denied the motion after a non‑evidentiary hearing; the court relied on a substantial‑compliance/harmless‑error rationale and noted defendant’s plea form, but did not hold an evidentiary hearing on the likelihood of deportation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Did the plea court comply with § 971.08(1)(c)’s required immigration advisement? | Reyes Fuerte: court materially deviated—used "resident" instead of "citizen" and omitted "denial of naturalization," so statutory advisement was not given. | State: deviations were minor; substantial compliance sufficed. | Court: Advisory did not comply with statute; use of "resident" (not "citizen") and omission of naturalization were substantive errors. |
| 2) Did Reyes Fuerte sufficiently show a plea was "likely to result" in deportation under § 971.08(2)? | Reyes Fuerte: alleged he was in preexisting deportation proceedings, would have been eligible for cancellation under 8 U.S.C. § 1229b(b)(1) based on 10+ years' presence and U.S.‑citizen children (one with serious illness), and the fleeing conviction is a CIMT that destroyed that defense. | State: allegations are insufficient and speculative; defendant must do more than cite federal statute. | Court: Allegations were particularized and sufficient to require an evidentiary hearing; they plausibly show the plea likely made deportation more than just possible. |
| 3) Is harmless‑error analysis available to cure the statutory advisement defect? | Reyes Fuerte: Harmless‑error is not allowed under Douangmala; proper statutory advisement is mandatory. | State: urged harmless‑error/substantial compliance; relied on plea form and awareness. | Court: Harmless‑error inapplicable per Douangmala; cannot affirm on that ground. |
Key Cases Cited
- State v. Douangmala, 253 Wis. 2d 173 (Wis. 2002) (statute requires specific immigration advisement; harmless‑error not available)
- State v. Negrete, 343 Wis. 2d 1 (Wis. 2012) (defendant must plead particularized facts showing causal nexus between plea and likely immigration consequence; entitlement to evidentiary hearing if pleadings suffice)
- State v. Mursal, 351 Wis. 2d 180 (Ct. App. 2013) (explains when slight, non‑substantive deviations may still constitute substantial compliance)
- State v. Valadez, 366 Wis. 2d 332 (Wis. 2016) (addresses standard for "likely" as to exclusion from admission but did not resolve standard for deportation)
- Cano‑Oyarzabal v. Holder, 774 F.3d 914 (7th Cir. 2014) (holding that attempting to flee/elude an officer is a crime involving moral turpitude for immigration purposes)