State v. Andres Romero-Georgana

Plaintiff-Respondent, Wisconsin, State

v. Andres Romero-Georgana, Defendant-Appellant-Petitioner.

Supreme Court argument April Oral No. 2012AP55. July

Decided 2014 WI 83 668.) (Also in 849 N.W.2d reported defendant-appellant-petitioner, For there by Byron were briefs Sara Kelton Brelie and C. Eisenberg, Lichstein, and law student Diana Remington University Center, Frank J. Wisconsin argument by School, Law Madison. Oral Sara Kelton Brelie. plaintiff-respondent, argued

For the the cause was by attorney general, Gansner, William L. assistant attorney Hollen, with on whom the brief was J.B. Van general.

¶ a review of PROSSER, T. J. This is 1. DAVID appeals.1 unpublished The of the court of an decision by presented framed the defendant as has been issue evidentiary to an defendant is "entitled whether the alleg- hearing § motion Wis. Stat. 974.06 based on his postconviction ing counsel for assistance of ineffective argument failing strong for with- raise a [.]" drawal of the 2. somewhat innocuous statement This wide-ranging requires the court to conduct

issue procedure postconviction it deter- before discussion of Stat. mines whether the defendant's Wis. (2011-12)2 provides for motion a sufficient reason post- failing bring present claims in an earlier his proceeding whether the 974.06 mo- conviction alleges true, if would entitle that, tion sufficient facts case, the defendant procedural to relief. As is often history conclusions. is crucial to the court's following. ¶ 3. conclude the We alleges First, a who in a 974.06 defendant postconviction ineffective motion that his counsel was bring certain viable claims must demon- for clearly bring that the claims he wishes to are strate stronger than the claims counsel actu- ally brought. Starks, 2013 WI See State v. evaluating However, 2d Wis. N.W.2d strength reviewing comparative claims, of the any objectives preferences or courts should consider conveyed attorney. A claim's that the defendant to his strength may if a directed be bolstered defendant his attorney pursue it. 1 2012AP55, Romero-Georgana, State v. unpublished No. 2013). (Wis.

slip op. App. Ct. Mar. 2 are subsequent All references to the Wisconsin Statutes unless otherwise indicated. to the 2011-12 version Second, the defendant has not offered a postconviction in third for reason his motion sufficient post- § his 974.06 claim his second to raise reason, a sufficient a de- conviction motion. Without may bring claim in a 974.06 if not a motion fendant previously have raised in a filed that claim "could been appeal." direct State v. 974.02 motion and/or on sec. Escalona-Naranjo, 168, 173, 2d 517 N.W.2d 185 Wis. (1994). Consequently, the defendant's claim barred. not Third, even if the 974.06 motion were grounds, reason" the motion does

barred on "sufficient allege that, true, if entitle the not sufficient facts would allege that defendant to relief. The defendant failed to clearly stronger claim was than withdrawal resentencing specifically claim. He does not state attorney in- was ineffective and which ambiguous "postconvic- an reference to stead makes The motion then focuses almost exclu- tion counsel." provide sively facts on trial counsel and does not performance. regarding postconviction Con- counsel's sequently, falls far short of the defendant's motion properly required, the circuit court deter- what is evidentiary hearing. mined that he is not entitled to an I. FACTUAL BACKGROUND AND

PROCEDURAL HISTORY April complaint 7, 2006, the State filed 7. On (Romero- charging Andres Georgana) first-degree sexual assault of a child with 948.02(1) age contrary of 13 to Wis. Stat. under (2005-06). alleged complaint that Romero- The seven-year-old Georgana with the had sexual contact daughter he was in a the woman with whom public relationship. May state On assistant LaPlant) (Attorney ap- defender Carrie LaPlant was pointed represent Romero-Georgana. May 26, On Romero-Georgana right prelimi- waived his to a nary repeating examination, and an information charge complaint day. in the filed that was On June Romero-Georgana plea guilty entered a of not County Judge McKay. before Brown Circuit J.D. At arraignment, Judge McKay this scheduled the case for Romero-Georgana, you're trial and informed "If not a country, your citizen of this deportation."3 a conviction could lead to Romero-Georgana 20, 2006, 8. On October completed English Spanish Ques- an Plea Rights pled tionnaire/Waiver of form in which he no first-degree part contest to sexual assault of a child. As plea agreement, agreed any of the the State not to file charges against agreed additional the defendant and any specific sentencing not to make recommendation. plea hearing At a 17, 2006, on November Romero- Georgana plea entered a no-contest with aid of an interpreter. accepted Romero-Georgana's The court plea guilty first-degree him found of sexual assault age of a child under the of 13. plea hearing,

¶ 9. At the the circuit court failed deported to advise that he could be plea, required by a as result of his as Wis. Sat. 971.08(l)(c) (2005-06). pertinent portion The of the provides accepting plea guilty statute that before contest, or no the court shall: personally

Address the defendant and advise the you defendant as "If follows: are not a citizen of the America, you United States of are advised that a guilty or no contest for the you offense with which interpreter assisting There was an arraignment. at the may deportation, in the exclusion charged are result country to this or the denial of natu- from admission ralization, under federal law." 971.08(l)(c) (2005-06). § Stat. Wis. Romero-Georgana1 plea

¶ s came more than 10. Douang- years State v. after this court decided four mala, 1, a 62, 173, 253 Wis. 2d 646 N.W.2d 2002 WI emphasized importance of case in which this court statutory requirement the defendant to advise statutory 971.08(2) deportation possible as well as the about remedy See Wis. Stat. withdrawal.

(2005-06). McKay January Judge

¶ 19, 2007, sen- On Romero-Georgana years 12 of initial confine- tenced to years supervision. At the ment and four of extended fully sentencing hearing, Attorney LaPlant stated: "We custody, expect released from that as soon as he is deported may to be, that he will be back whenever happen. he does want that He does Mexico. And as as he can." want to return home soon Unfortunately, sentencing ¶ in Romero- sentencing Georgana, the court failed to consider by required guidelines Wis. as was then on the record 973.017(2)(a) (2007-08). Grady; See State v. Stat. 364. The 80, WI 302 Wis. 2d N.W.2d 973.017(2)(a) comply remedy with for failure to (2007-08) resentencing. was judgment was filed on 13. After of conviction Romero-Georgana

January filed a notice of 23, 2007, postconviction pursue relief, he re- and intent quested appointment postconviction counsel. Assis- (Attor- Hagopian public Suzanne tant state defender represent ney Hagopian) appointed to Romero- was proceedings. appellate Georgana later, 20, 2007, 14. Several weeks on March Department Immigration U.S. of Justice and Natural- (INS) Immigration ization Service an sent Detainer— Dodge Notice ofAction form to Correctional Institution serving where was his sentence. The form advised the institution that INS had started investigation an Georgana to determine whether Romero- subject deportation required

was days INS be notified at least 30 before Romero- Georgana was released. Appeal

A. First Postconviction Motion and Attorney Hagopian 15. On June filed postconviction a motion for of time to extension file a appeal. Attorney motion motion, or notice of In the Hagopian stated that she had met with Romero- Georgana help interpreter, and, with the of an dis- possible postconviction regard- cussed two claims: one validity ing the of the no-contest and the other for resentencing go through the based on court's failure to sentencing guidelines the on the record. July Romero-Georgana

¶ 20, 2007, 16. On filed a (Rule) postconviction pursuant motion to Wis. Stat. 809.30(2)(h) (2007-08) seeking resentencing or sen- postconvic- tence modification in the alternative. The alleged sentencing tion motion that the court failed to sentencing guidelines, consider the relevant as re- 973.017(2)(a) (2007-08) quired under Wis. Stat. and Grady, 80, 302 Wis. 2d which had been decided less any than a month earlier. The motion did not mention plea colloquy. defect in the August 23, 2007, 17. On the circuit court held a hearing Romero-Georgana's and denied Attorney Hagopian appeal motion. filed a notice of on August 29, 2007. appeals April 22, 2008, the court On remanding judgment reversing an order

issued McKay resentencing Judge failed to for because the case sentencing guidelines on the record. State consider unpub- Romero-Georgana, 2007AP2042-CR, No. v. 2008). (Wis. App. Apr. 22, Soon after Ct. order lished Attorney Hago- appeals decision, its issued the court explaining Romero-Georgana pian a letter sent judicial informing right him of his decision Attorney Hagopian later, weeks substitution. Several Romero-Georgana phone spoke on the and discussed help interpreter, judicial of an With substitution. Romero-Georgana Hagopian Attorney that he told attorney judicial with discuss substitution should resentencing. represent him at who would public defender William Assistant state FitzGerald) appointed (Attorney was FitzGerald resentencing. Attorney Romero-Georgana represent at Romero-Georgana on from received a letter FitzGerald May stating wanted 2008, 29, Attorney judge. May On to substitute his judicial requesting substi- filed a motion FitzGerald judicial assignment was filed on June A order tution. Judge County Kendall Circuit 2008, in which Brown McKay. Judge Kelley for M. was substituted Judge Kelley held a 1, 2008, 20. On October part resentencing hearing, recom- and, in on a based investigation, presentence sentenced in mendation Romero-Georgana years confinement to 20 of initial supervision. years eight A revised extended and first-degree judgment sexual assault of conviction for age on of 13 was filed October of a child under day, Attorney 2008. On the same FitzGerald filed Romero-Georgana's pursue postcon- notice of intent to viction relief. Appeal

B. Second Postconviction Motion and (Attor- Attorney Tajara ¶ 21. S. Dommershausen Dommershausen) ney represented Romero-Georgana postconviction appellate proceedings. in and On March (2009-10)4 24, 2009, she filed a Wis. Stat. postconviction Romero-Georgana. motion on behalf of alleged Attorney Hagopian pro- The motion had failing vided ineffective assistance counsel for resentencing, Judge inform that on McKay would not be able to increase his sentence (absent factor) Judge McKay a new but if were substi- judge impose longer tuted, the new could a sentence having justify without postconviction the increase in time. The allege Attorney

motion did not Hagopian was ineffective for to move for withdrawal. Judge Kelley 22. On June held a

hearing postconviction on the motion and determined Attorney Hagopian Attorney that neither nor FitzGer- advising Romero-Georgana ald was ineffective in 974.02(1) (2009-10) Wisconsin Stat. states: A motion for relief other than under s. 974.06 974.07(2) by or the defendant in a criminal case shall be made in provided appeal by the time and manner in s. 809.30. An judgment defendant a criminal case from a of conviction or denying postconviction from an order a motion or from both shall 808.04(3) provided be taken in the time and manner in ss. and appeal judgment corpus An 809.30. of an order or on habeas remanding custody prisoner committed for trial under s. 808.03(2) 809.50, 970.03 shall be taken under ss. with notice attorney general attorney opportunity to the and the district for them to be heard. Judge Kelley judicial a issued substitution. about denying on motion written order July Attorney filed a notice 15, 2009. Dommershausen July appeal 21, 2009. of on Attorney 2009, 19, On Dommer- 23. November appeal pursuant a to

shausen filed notice of no-merit (Rule) 809.30(2)(a) (2009-10), filed and she Wis. Stat. considering report 2, 2010. After no-merit on March report, appeals affirmed the the no-merit the court judgment Septem- in a decision filed on circuit court's 9, 2010. ber appeals court of men- decision, In its Romero-Georgana response5 to had filed a

tioned that Attorney report in which Dommershausen's no-merit regarding [d] an his initial no contest he "raise issue plea." appeals to the court of limited its review The resentencing determined that issue and because relating Romero-Georgana did not raise issue appeal, he forfeited in his initial the no-contest Romero-Georgana petitioned court for claim. this review, we denied in an order filed December which Appeal Motion and C. Third Postconviction Romero-Georgana September 25. On pro In the motion Wis. Stat. 974.06. filed a se under he is a motion, stated that a citizen the United native and is not Mexican alleged "[p]ostconviction was counsel He States. circuit raise the issue that the ineffective for statutory comply mandate failed to with court Attorney Romero-Georgana's response Dommer report in the no-merit is not record. shausen's Romero-Georgana personally when it did not address to advise him in the words set forth in Wis. Stat. 971.08(l)(c) deportation consequences of the of his no plea. alleged contest . . ." The 974.06 motion that Romero-Georgana completed plea question- when fully signing naire, he did not understand what he was poor English, inadequate interpreters, because of his Attorney LaPlant's failure to advise him of the deportation Romero-Georgana alleged risk. that he pled guilty would have not had he known that he could deported. be alleged 26. The Wis. Stat. 974.06 motion also "[p]ostconviction counsel was ineffective for fail-

ing to raise a claim of ineffective assistance of trial fully explain deportation counsel for to ,"6 consequences plea. of his no contest . . Romero- Georgana Immigration attached an Detainer —Notice investigation ofAction that indicated that an had been Romero-Georgana initiated to determine whether was subject deportation.

¶ 27. In a decision and order filed on December Judge Kelley Romero-Georgana's 22, 2011, denied § 974.06 motion. The circuit court concluded that the § 974.06 motion did not contain sufficient factual alle- gations Romero-Georgana hearing. to entitle to a The "Although Romero-Georgana's allega- court stated: tions of the ineffectiveness of trial counsel are relevant analysis, argument hap- to the he limits his to what pened analyze on the trial level. For the Court pertain- ineffectiveness, it needs facts ing why postconviction counsel was ineffective." 6 Romero-Georgana concedes his brief that he cannot prevail on this claim and has therefore abandoned it. that Romero- Therefore, court determined evidentiary hearing. Georgana not entitled to an was January 28. On appeal judgments from his of convic a notice of filed denying §his motion. In from the order 974.06 tion and appeals per decision, curiam the court of affirmed denying Romero-Georgana's circuit court's order hearing. v. motion without a State Romero- unpublished slip op., Georgana, ¶ 1 2012AP55, No. 2013). (Wis. appeals App. Mar. The court of Ct. Romero-Georgana's § 974.06 motion determined only assertions and did not dem contained bare-bones clearly why was the withdrawal claim onstrate by Attorney Hagop stronger than the claims raised ¶¶ Id., Furthermore, the court concluded 5-6. ian.7 that Romero-Georgana's § 974.06 motion did not ex Escalona-Naranjo against plain why succes bar apply. ¶ postconviction Id., motions did not 7. sive Romero-Georgana petitioned ¶ this court for granted 19, 2013. we on December review, which II. OF REVIEW STANDARD | al a Wis. Stat. 974.06 motion 30. Whether bring leges available a sufficient reason for subject question novo to de claims earlier is a law App ¶¶ Kletzien, 9, 16, 331 22, review. State v. 2011 WI Similarly, a 640, 794 whether Wis. 2d N.W.2d appeals of the appeals The court of did not address stated, appeal "Because an from judgments of conviction governed by Wis. Stat. under Wis. Stat. 974.06 is not an order (Rule)] subject 809.30, is not the judgment of conviction [§ 2012AP55, Romero-Georgana, No. appeal." State v. of this 2013). (Wis. 19, App. slip op., 1 n.l Ct. Mar. unpublished alleges require facts to a 974.06 motion sufficient hearing question is a of law that this court reviews de Balliette, 2d 79, 18, novo. State v. 2011 WI 336 Wis. allege 358, 805 N.W.2d 334. If the motion does suffi- evidentiary facts, cient "the circuit court must hold an hearing." Allen, State v. John 2004 WI (citations omitted). Wis. 2d 682 N.W.2d 433 "How- ever, if the motion does not raise facts sufficient to presents only conclusory relief, entitle the movant to allegations, or conclusively or if the record demonstrates that the defendant not relief, is entitled to the circuit grant deny hearing." court has the discretion to or a Id. (citations omitted). We review the circuit court's dis- cretionary grant deny hearing decision to or under the erroneous exercise of discretion standard. Id.

III. DISCUSSION ¶ 31. Much of this court's time is devoted to cases involving postconviction claims that are filed after a appeal require defendant's is over. These claims apply principles court to fundamental including principle finality impor- review, justice system. Accordingly, tant in the criminal not every justify mistake will relief.

¶ 'designed § 32. Wisconsin Stat. 974.06 "was replace corpus primary habeas as the method in which a defendant can attack his conviction after the time for appeal expired.'" Escalona-Naranjo, has 185 Wis. 2d (quoting Eisenberg, at 176 Howard B. Post-Conviction (1972)). Marq. 1970's, Remedies in the 56 69, L. Rev. 79 provides correcting Section 974.06 a mechanism for (1) errors when: the sentence violated the United (2) the Constitution; States or Wisconsin court lacked (3) jurisdiction impose sentence; or the sentence subject maximum was exceeded the or "otherwise 974.06(1); § Balliette, collateral attack." Wis. Stat. see may § 358, 2d 34. A defendant file a 974.06 336 Wis. any appeal "[a]fter

motion at time the time for or remedy provided in s. 974.02 has ex- 974.06(l)-(2). pired." § However, Wis. Stat. the follow- applies: ing caveat grounds person

All for relief available to a under original, in this section must be raised his or her finally supplemental Any ground or amended motion. raised, adjudicated knowingly, voluntarily or not so or intelligently proceeding waived in the re- any in in sulted the conviction or sentence or other may proceeding person has taken to secure relief motion, subsequent not be the basis for a unless the ground finds a for relief asserted which for court reason was not asserted or was inadequately sufficient original, in supplemental raised or amended mo- tion. 974.06(4) added). (emphasis

Wis. Stat. 974.06(4) promotes Stat. final- Wisconsin ity efficiency by bring requiring defendants to all single proceeding in available claims unless there raising exists a sufficient reason for not some claims proceeding. Escalona-Naranjo, that initial 185 Wis. 2d Allen, 185-86; at see State v. Aaron 2010 WI (citation omitted) ("The 328 Wis. 2d 786 N.W.2d purpose Stat. 974.06 is to avoid succes- behind Wis. by requiring a defendant to raise sive motions for relief motion."). grounds all for relief in one ¶ Thus, reason, a sufficient movant 34. without may bring § if it not a claim in a 974.06 motion "could previously 974.02 have raised in a filed sec. been appeal." direct See Escalona- motion and/or on Naranjo, at 173. 185 Wis. 2d provide

¶ need a "sufficient 35. A defendant not cognizable a claim under Wis. Stat. reason" for did not file a motion under defendant if appeal. Lo, Wis. Stat. 974.02 or a direct State v. 2003 ¶ 107, n.11, 1, 756; 44 WI 264 Wis. 2d 665 N.W.2d (1974). Loop State, 499, v. 65 Wis. 2d 222 N.W.2d 694 But if the defendant did file a motion under 974.02 or appeal previous § 974.06, a direct or a motion under making a claim that defendant is barred from previously could have been raised unless he shows a making Lo, sufficient reason for not the claim earlier. ¶1, 264 Wis. 2d

¶ instances, In some ineffective assistance of may postconviction counsel be a sufficient reason for failing to raise an available claim in an earlier motion appeal. Allen, 85; or on direct Aaron 328 Wis. 2d Balliette, see 336 Wis. 2d 62. If the defendant sufficiently alleges postconvic- ineffective assistance of tion counsel as the reason for raise an issue necessary "[t]he perform earlier, trial can court factfinding directly sufficiency function and rule on the Allen, of the reason." Aaron (brackets 328 Wis. 2d 85 original) (quoting Rothering State ex rel. v. McCaughtry, 675, 682, 205 Wis. 2d N.W.2d (Ct. 1996)). App. Conversely, if the defendant fails to why allege and how his counsel was constitutionally is, ineffective —that if the defendant conclusory allegation a mere that his asserts counsel was ineffective—his "reason" is not sufficient. beyond prerequisites

¶ To the initial move 974.06(4) Escalona-Naranjo, Wis. Stat. and to adequately relief, a claim raise for defendant must allege e.g., who, what, "sufficient material facts— why, where, when, that, if true, would how— [the defendant] entitle to the relief he seeks." John ¶ Allen, 568, Balliette, 2; 274 Wis. 2d see 336 Wis. 2d Bentley, ¶¶ 358, 58-60; State v. 201 Wis. 2d (1996). 314-18, 548 If so, N.W.2d 50 he does normally evidentiary defendant is entitled to an hear- ing. Romero-Georgana's sum, alleges In because

§ 974.06 motion that his counsel provided allege assistance, ineffective he must facts support every that, true, facet of his claim and if would entitle him to relief.

A. Ineffective Assistance of Postconviction Counsel

¶ 39. The Sixth and Fourteenth Amendments to guarantee the United States Constitution criminal right defendants the to effective assistance of counsel. Balliette, 336 Wis. 2d 21. To state a claim for counsel, ineffective assistance of the defendant must (1) performance demonstrate: that his counsel's was (2) performance deficient; and that the deficient was prejudicial. Washington, Strickland v. 466 U.S. (1984). prove deficiency,

¶ 40. To "the defendant must representation objec- show that counsel's fell an below tive standard of Id. at 688. The de- reasonableness." "strong presumption that

fendant must overcome range of rea- falls within the wide counsel's conduct professional assistance." Id. at 689. sonable prejudice, prove must the defendant 41. To were so serious as to "that counsel's errors show deprive trial, a trial whose of a fair defendant inquiry prejudice at 687. The result is reliable." Id. probability that, a reasonable asks whether "there is unprofessional errors, the result of for counsel's but proceeding A reasonable would have been different. probability probability to undermine is a sufficient in the outcome." Id. at 694.8 confidence Romero-Georgana's alleges ¶ he 42. motion that postconviction coun- received ineffective assistance of bring postconviction failed to a sel because counsel Romero-Georgana to assert. claim that now wishes allegation allegation from an that This is different comply postconviction did not with the defen- counsel post- requests trial that dant's or instructions after or bring any all. conviction counsel failed to claims at acknowledges postconvic- that his brought claims; he contends now that tion counsel brought wrong postconviction claims. counsel allegation postconviction ¶ An that counsel brought bring failed to a claim that should have been allegation performance an was constitu- that counsel's tionally deficient, it the services re- fell below quired by objective an standard of reasonableness 8 analysis presumption The Strickland and the of effective Balliette, apply postconviction assistance counsel. State v. 358, WI 336 Wis. 2d 805 N.W.2d 334. ¶ 2011

544 prevailing professional Strickland, norms. under reviewing U.S. at 687-88. How does a court evaluate allegation? an such

¶ Starks, In 2d the court faced Wis. postconviction a situation in which any counsel failed to file including post-trial motions, a Wis. Stat. 974.02 argu- motion, in the circuit court but made numerous appeal. Id., on 4. When coun- ments performance subsequently attacked, sel's was this disregarded nonperformance court counsel's in the performance circuit court and as instead evaluated his "appellate counsel." Id. adopted "clearly stronger" 45. Starks stan-

f evaluating performance "appellate dard in of coun- adopted "clearly Id., is, sel." stronger" pleading 6. That the court deficiency prong for the standard the Strickland test Wisconsin for criminal defen- alleging petition they dants in a habeas received appellate due ineffective assistance counsel to coun- differently, sel's failure to raise an issue. Stated court said that "the defendant must show that 'a clearly particular stronger than nonfrivolous issue was present.'" (quoting Id., issues that counsel did (2000)); Gray Robbins, v. Smith v. 528 U.S. see (7th 1986) ("Generally, Greer, 800 F.2d Cir. only ignored clearly stronger than when issues are presented, presumption those will the of effective as- overcome."). sistance of counsel be "clearly stronger" is 46. We think this standard equally appropriate evaluating alleged in defi- ciency attorney's performance postconviction in an as postconviction counsel when counsel is accused of on account of his failure to raise ineffective assistance material the circuit court. The certain issues before post- appropriate "clearly stronger" when standard circuit other issues before the counsel raised conviction compare argu- thereby making possible it to court, arguments previously against proposed ments now may clearly stronger standard not However, the made. adequate valid reasons for choos- when counsel has be arguments ing over another. These reasons one set of preferences, may directives, of the even the include the defendant. Turning Romero-Georgana's § 974.06 Romero-Georgana

motion, we first consider whether failing bring provided his reason for sufficient postconviction in earlier motions. See claims his Escalona-Naranjo, 185 Wis. 2d at 181-85. We then allegations consider the of ineffective assistance postconviction whether Romero- counsel to determine Georgana alleged that, true, facts if has sufficient would entitle him to relief.

B. Sufficient Reason Romero-Georgana acknowledges that he failing allege must a sufficient reason for to raise his correctly § 974.06 claim earlier. He states that ineffec- may, provide cases, tive assistance of counsel in some requisite there, however, sufficient reason. From argument his veers off course. im- alleges plies motion a sufficient his failing bring reason for the claims earlier because alleges counsel motion his (Attorney Hagopian)9 to raise was ineffective

9 Romero-Georgana's Wis. Stat. 974.06 motion does not specify postconviction attorneys provided which of his two Thus, we are uncertain as to where we ineffective assistance. plea pursuant a claim for withdrawal to Wis. Stat. 971.08(2). point, § At this focuses on wrong attorney. postconviction ¶ 49. There were three motions in (1) postconviction pursuant this a case: motion filed to (Rule) 809.30(2)(h) (2007-08) § by Attorney Wis. Stat. (2) (2009-10) Hagopian; a Wis. Stat. motion (3) by Attorney filed Dommershausen; a 974.06 pro by Romero-Georgana. motion filed se Attorney Hagopian's alleged ineffective as- filing postconviction might sistance in the first motion failing bring have been a sufficient reason for to plea might any withdrawal claim. It not. In event, although Attorney Hagopian's alleged ineffective assis- underlying present tance is an claim in the Wis. Stat. explain provide 974.06 motion, it does not or Attorney sufficient reason for fail- Dommershausen's postconviction argue ure in the second motion to Attorney Hagopian failing was ineffective for to seek postconviction withdrawal in the first motion.

¶ 51. These are not onerous demands. Romero- Georgana required allege was two instances of ineffective assistance of counsel be- attorneys prior postconviction cause his filed two mo- presented.10 tions that did not raise the issue now should analysis good direct our indication that the motion —a contains fatal flaws. Romero-Georgana's Because brief focuses Attorney assume, on Hagopian, we purpose for the of address- ing Romero-Georgana's arguments, allege he intended to in his Attorney § 974.06 motion that Hagopian provided inef- fective assistance of underlying However, counsel as the claim. itself, analysis in our of the motion we note that the reference "postconviction ambiguous counsel" is and renders his motion insufficient. 10Romero-Georgana provide must a sufficient reason for bring the claims he now wishes to raise an earlier granted County Circuit Court

Moreover, the Brown evidentiary hearings these on two hearings present at both he was motions—and —but brought up. presented sum, In was never now the issue Romero-Georgana allege required his third to was —in (1) Attorney postconviction Dommer- motion—that constitutionally in the second ineffective was shausen failing postconviction a claim to raise about motion for bring failing Attorney Hagopian's to for ineffectiveness postconviction plea claim in the first withdrawal (2) Attorney Hagopian was constitution- motion; and ally for motion in the first ineffective plea failing claim. to withdrawal raise (against required allegations At- The first might Dommershausen), pleaded, torney properly if failing requisite provide for to sufficient reason allega- required bring The second the claim earlier. properly pleaded, Attorney Hagopian), (against if tions might provide grounds However, the re- for relief. properly pleaded. allegations quired The have not been Romero-Georgana's present single in statement "[pjostconviction counsel was motion that failing that the circuit to raise the issue ineffective for statutory comply mandate with court failed Romero-Georgana personally it did not address when Stat. in set forth in Wis. him the words to advise reason, and Because he offers no postconviction proceeding. ineffective only 974.06 motion are for claims his § counsel, if he were to offer a assume that assistance of we reason, Attorney Dommershausen's al- it would be sufficient possible that he had other assistance. It is leged ineffective Thus, say reasons, when we Romero- were advanced. but none allege ineffective assistance of Georgana required was failing to as a sufficient reason for Attorney Dommershausen earlier, say we can see no we that because bring his claims bring present claim earlier. reason for other 971.08(l)(c) deportation consequences of the of his no ambiguous plainly contest ..." is deficient ("Postconviction only attorney because it refers to one was") identify attorney. counsel and does not even conclusory Moreover, the statement inasmuch as attorneys arguments. both made other attorneys 53. When a defendant has two "postconviction share the classification of counsel," a general "postconviction reference to counsel" is not enough. Romero-Georgana's postconviction third mo- allege explain tion was bound to fail if it did not and why postconviction his second motion did not make the Attorney claim he now seeks to make. Dommer- simply shausen not mentioned. Since the motion does not offer a sufficient reason for to bring the current claim in the second Romero-Georgana's motion, motion is barred under 974.06(4) Escalona-Naranjo. Having ¶ Romero-Georgana 54. concluded that raising is barred from his claims, current we need not go any briefly However, further. we will discuss the insufficiency Romero-Georgana's of 974.06 motion to provide guidance for future movants. Sufficiency Romero-Georgana's Allegations

C. of of Ineffective Assistance of Postconviction Counsel Romero-Georgana unusually 55. faced an com- plicated postconvic- situation when he filed the third objective plea tion motion. His was to withdraw his of judgment against no contest and vacate the him on grounds the circuit court made an error in the plea colloquy likely deported and that he is to be because of his conviction. This would have been

simple Bangert11-type if it filed motion had been sentencing shortly Romero-Georgana's in Janu after ary pro Septem he filed his se motion on 2007. When required justify the 2, 2011, however, he was to ber strongest delay making case, in his claim. In this alleged potential justification appears inef to be Attorney for fail of Dommershausen fective assistance ing alleged complain assistance about ineffective Romero-Georgana's Attorney Hagopian raising of statutory plea. right his to withdraw Romero-Georgana's is one of 56. Because claim required counsel, he ineffective assistance was attorney provided sufficiently allege that each defi- representation attorney's cient each deficient performance prejudiced Strickland, 466 at him. U.S. making In his ineffective assistance Romero-Georgana had claims,12 counsel some difficult part First, deal, of the facts overcome. as agreed bring charges against not to additional State though complaint sug- even gested that there were numerous in which he occasions against if Thus, the victim. committed sexual offenses gone Romero-Georgana had to trial after successful plea withdrawal, the State would have free to been 11 (1986). Bangert, 131 State v. 389 12 Wis. 2d N.W.2d analysis Although our in this section focuses on the sufficiency underlying of the ineffective assistance of counsel against Attorney applies claim it the Hagopian, also to suffi above, requirement. cient reason As discussed because Romero-Georgana any bring did not reason for to offer motion, present postconviction his in his he did claim second adequately provide raising not a reason for his claim sufficient postconviction of of in a ineffective assistance counsel motion.

bring charges. Romero-Georgana's Second, additional sentencing trial counsel stated at the initial that Romero-Georgana eager deported, was to be which Romero-Georgana's with conflicts current contention plea he that would not have a entered if he knew it deportation. Attorney Hagopian Third, could lead to said in a potential motion the court that she discussed a regarding validity

claim of the no-contest plea, suggests which she that talked to Romero- Georgana seeking plea Finally, about withdrawal. At- torney gave Hagopian bringing reason valid for resentencing evidentiary claim when she stated at the hearing for the second motion that she thought, sentencing guidelines, on based Romero- Georgana would receive a shorter at sentence resen- tencing. light backdrop, In of this factual we turn to sufficiency. the motion to assess its 1. Deficient Performance clearly stronger ¶ applies 58. The standard deficiency prong required allegation of each ineffective Thus, assistance counsel this case. Attorney Hagopian's representation demonstrate Romero-Georgana required deficient, was was to show clearly stronger withdrawal was claim resentencing Starks, than the See claim. 349 Wis. 2d required by alleging 59. He was do so "sufficient e.g., why, what, material who, where, when, facts— true, that, if would him entitle to the relief he how— Allen, seeks." John 2dWis. 2. The five "w's" together, one "h" sometimes run but a sufficient questions. motion will answer all six allege has failed to ambigu- "who"his claim is about his because assertion single "[p]ostconviction ously Al- counsel." refers ato Attorneys Hagopian though indicates that the motion Romero-Georgana, represent did Dommershausen specify Instead, whose conduct is at issue. it does not wrong proceed- stage the on the the motion focuses regarding ing al- facts trial counsel's and discusses leged If wanted to ineffectiveness. Hagopian, allegations against Attorney he make by specifically have so in his motion should stating done "Attorney Hagopian ineffective" was claiming "[p]ostconvic- ambiguously than rather ." is ineffective . . . As the motion tion counsel was sufficiently provided "who" written, it does not state ineffective assistance. allege broadly 60. 974.06 motion does The provides the basis for the ineffective

"what" conduct it states, claim when "Postconviction coun- assistance raise issue that the sel ineffective for the was comply statutory man- court with the circuit failed Romero-Georgana person- it did not address date when deportation consequences ally to advise him ... of the plea." However, not of his no contest it does tell Attorney Hagopian her court what did that made plea failure to withdrawal claim ineffective. raise contrary act Did she fail to Did she his directive? advise him? Romero-Georgana's Furthermore, sufficiently allege or

motion does not "where" "when" It the ineffective assistance occurred. unclear allegations postconvic- his on first whether focus proceeding tion or second. say "why" Similarly, not motion does

Attorney Hagopian was The mere fact that ineffective. Attorney Hagopian pursue did withdrawal not claim not does demonstrate ineffectiveness because presumably good had, have, she could have did pursuing plea not reasons for For withdrawal. ex- ample, Romero-Georgana bring could have told her to resentencing Attorney Hagopian a claim for after ad- options. suggests, vised him his Or, as the record Romero-Georgana might deported, have wanted to be Attorney Hagopian believed he would receive less resentencing. time on We will not assume ineffective conclusory assistance Georgana from a assertion; Romero- say why must the claim he wanted raised clearly stronger actually was than the claims raised. any explanation. His motion devoid of such Finally, Romero-Georgana's ¶ 63. because mo- only conclusory allegations tion contains and almost no relating postconviction facts to the counsel, relevant he prove has not demonstrated "how"he would his claims evidentiary hearing. copies at an Does he have or postconviction records of communications with his support testify counsel to his claim? on Who would his behalf? Blanket assertions of ineffective assistance are opposing not sufficient alert the court or counsel how prove hearing, espe- will defendant his claim at a cially when the record contains facts that refute the argument. crux of the defendant's allege sum, In defendants must sufficient reviewing facts in their 974.06 motions so that courts grant hearings. do not frivolous We will not into read allegations the 974.06 motion that are not within the four corners of the motion. Therefore, Romero- Georgana sufficiently allege Attorney has failed to Hagopian was deficient.

¶ 65. Because we have determined that allege § 974.06 motion does not sufficient facts to deficient, counsel was demonstrate the motion suffi- need to consider whether we do not preju- ciently alleged prejudice. However, we consider briefly provide guidance for future movants. dice Prejudice prejudice, Romero To demonstrate Georgana's "there a reason show that is motion must unprofessional probability for counsel's that, but able proceeding would have been errors, result of the the Strickland, at 694. Romero- 466 U.S. different." Georgana alleges postcon § 974.06 motion that

in his argue that to was ineffective for viction counsel comply Stat. court did not with Wis. the circuit (2005-06) 971.08(1)(c) hearing. plea plea § the The at hearing transcript that circuit failed is clear the court deportation risk as of the to advise required by § Thus, Romero Wis. Stat. 971.08. Georgana likely plea if he could have withdrawn his 971.08(2) timely brought §a motion.13 had 971.08(2) provides part: in Stat. relevant Wisconsin § (l)(c) by required fails to a defendant as sub. If a court advise likely plea later that the to result in the and a defendant shows country deportation, exclusion from admission this defendant's naturalization, the court the defendant's motion or denial of on any applicable judgment against the defendant and shall vacate permit plea and withdraw the enter another defendant plea. brief, Romero-Georgana In discusses the standards his 971.08(2) However, length. at pleading under Wis. Stat. § for 974.06, this case falls under Wis. Stat. § because only to Stat. 971.08 is relevant withdrawal claim under Wis. § Romero-Georgana's question prejudice in the context of against Attorney Hagopian. The assistance claim ineffective relating to Romero-Georgana's argument State responded this stating response by the State to—and by that "a § However, the motion at issue is not a Wis. 971.08(2) fact, Stat. motion. In at oral argument, Romero-Georgana's explicitly counsel stated that Romero-Georgana was this case as a arguing Wis. Stat. said, 974.06 motion. Counsel "This court's order review granting specifically asked us to within the stay arguments review, made for petition did not include an argument this case should be 971.08(2) decided as a motion by Therefore, itself."14 Argument court's consideration Georgana's section I of Romero- of— unnecessary. Romero-Georgana pur- brief is Had 971.08(2) timely manner, sued a Wis. Stat. claim in a he might prevailed well have on it." Bradley argument, "Why Justice asked at oral does 971.08(2) have to be a 974.06 motion at all?" Romero Georgana's responded: counsel straight I believe that it could have been raised as a 971.08(2) appointed motion. As this court we knows were . .. after petition up for review was filed and the case had been decided point

to that under 974.06 and we believe that our client is basis, entitled to relief on that and so that's how we've construed argued the motion and it. Chief Justice Bradley's Abrahamson continued Justice line questioning suggested of Romero-Georgana that could pursued argument have an based on Wis. Stat. 971.08. The § asked, you Chief Justice position?" then "But didn't take that Romero-Georgana's responded, your counsel "It's true honor. Thus, despite being prodded argument, We did not." at oral Romero-Georgana asking was clear: he is not this court to construe his Wis. Stat. 974.06 motion as a Wis. Stat. § 971.08(2) Indeed, request motion. a appear such would § improper light history under the facts of this case and in of the 971.08(2). In the 1981-82 version of the Wisconsin Stat- § 971.08(2) utes, stated, contained a time limit that "The court § permit guilty plea shall not the withdrawal of a or no contest 971.08(2) days later than after conviction." Wis. Stat. § (1981-82). 120-day repealed The time limit was in 1983 Wis. judicial explained: Act 219. A council note a Wis. Stat. never brought because 971.08(2) in withdrawal for argued plea motion or § 971.08(2), stats., 120-day providing time limit for a Section conviction, plea plea

withdrawing guilty a of no contest after a or guilty plea unnecessary. or repealed Withdrawal of a as may sought by postconviction under s. motion be of no contest 974.06, 809.30(1X0, stats., stats. or under s. The Judicial Note, Act 43.§ 1983 Wis. Judicial Council that, general, proper method for suggests Note Council after conviction is plea withdrawal claims raising 971.08 § (Rule) 809.30, Wis. Stat. Wis. Stat. through § a motion under 974.02, 974.06. or Wis. Stat. § § case, had an the notice that INS started present

In the Romero-Georgana was investigation determine whether March 2007—four subject deportation was dated postconvic- Attorney Hagopian filed the first before months addition, petitioner's In brief demonstrates tion motion. Removal Romero-Georgana's Final Administrative Security was dated Department of Homeland Order from the 22, 2007, to have received it appears and he October year half he filed 2007—-almost a and a before on November When a defendant his second motion. likely deported subsequent- that he is to be has notice Wis. Stat. ly brings postconviction claims unrelated to bring 971.08(2), unwise to allow him to we think it would be § 971.08(2) time, although claim as a motion at a later his may bring his claim as a Wis. Stat. he be able to delay. Removing if he a sufficient reason for the motion has 971.08(2) motion would all time constraints on a Wis. Stat. § judicial efficiency by encouraging defendants frustrate a time delay bringing those motions. In the absence of to limit, deportation or wanted if a defendant were indifferent to keep have incentive to deported, to be the defendant would 971.08(2) pursuing pocket in his back while relief motion However, us. In grounds. issue is not before on other case, only Romero-Georgana's motion this we need address that motion he under Wis. Stat. 974.06 because brought.

previous postconviction attempt motions, he must present that claim in the resuscitate Wis. Stat. § 974.06 motion. allegation proper prejudice

¶ 68. A would state Romero-Georgana Attorney that Hagopian would have told pursue withdrawal claim if she option him had advised that it was an because he deportation. allegation wanted to avoid That would probability demonstrate that there ais reasonable that proceedings Attorney the Hagopian would have been different if provided

had effective assistance of counsel. allegation, In the absence of that the 974.06 motion alleges only Romero-Georgana would not have pled Attorney depor- had LaPlant informed him of the consequences plea. prejudice tation Thus, of his allegation wrong stage proceeding. is at the of the This point, might given is a subtle and we have Romero- Georgana, pro defendant, a se the benefit of the doubt adequate. had the rest of his 974.06 motion been allege raising Because he did not sufficient reason for current claim his earlier and he did not because sufficiently allege Attorney Hagopian's per- deficient formance, we do not need to determine whether he was prejudiced. Although liberally filings by

¶ 69. we construe pro litigants, Israel, se bin-Rilla v. 2dWis. (1983), 520, 335 N.W.2d 384 a limit there is to our reviewing might eyes lenience. A court avert its from peripheries, ignore on the but it will not flaws obvious at of a insufficiencies center motion. sufficiently allege has failed to Attorney Dommershausen was ineffective for Attorney Hagopian raise the ineffectiveness of in the second motion. He failed to suffi- has Attorney ciently allege Hagopian was ineffective failing in withdrawal to raise the issue for postconviction motion. first proceedings ¶ at the Wis. Stat. arrive 70. When stage, heard; has he the defendant's case been by represented counsel; sometimes he has has been pro- previous postconviction motions. He has filed designed jus- through proceedings gressed to facilitate point finality. any Thus, claim of error must tice and particularly alleged surrounding con- the facts supposedly jurisdictional viti- or flaws that stitutional judicial system. goals Romero- ated the of the Georgana's § 974.06 motion falls far short of what required.

D. Circuit Court's Exercise of Discretion Romero-Georgana's ¶ 71. Because motion is Escalona-Naranjo under and Wis. Stat. barred 974.06(4) sufficiently § allege he has failed to because relief, that, true,

facts if would entitle him to deny Romero-Georgana's circuit court's decision to hearing § 974.06 motion was not an errone- without ous exercise of discretion.

IV. CONCLUSION following. ¶ 72. conclude the We alleges First, a defendant who a 974.06 postconviction motion that his counsel was ineffective bring for certain viable claims must demon- clearly bring strate that the claims he wishes to stronger are than the claims counsel actu- ally brought. Starks, 349 Wis. 2d 6. How- See evaluating comparative strength ever, in of the any objectives reviewing claims, courts should consider conveyed preferences that the defendant to his or attorney. strength may A be if a claim's bolstered attorney pursue defendant directed his it. Second, the defendant has not offered a for to raise his 974.06 claim

sufficient reason in motion. Without a suffi- his second may bring a reason, cient a defendant not claim a motion if that claim "could have been raised previously in a filed sec. 974.02 motion and/or on direct Escalona-Naranjo, appeal." 185 Wis. 2d at 173. Conse- quently, the defendant's claim is barred.

¶ Third, 75. even if the 974.06 motion were not allege that, not sufficient barred, the motion does facts true, if would entitle the defendant to relief. The allege plea the defendant failed to withdrawal clearly stronger resentencing claim than the was specifically postconvic- claim. He not state which does attorney tion was ineffective and instead makes an ambiguous "postconviction reference to counsel." The exclusively then focuses almost on trial counsel motion provide regarding postconviction and does not facts performance. Consequently, the defendant's counsel's required, motion falls far short of what and the properly circuit court determined that he is not en- evidentiary hearing. an titled to appeals By the court of the Court.—The decision of is affirmed. (dissent-

¶ BRADLEY, 76. WALSH J. ANN ing). judge, As a circuit court I handled thousands of Many imposing cases. quences those dealt with conse- cases holding people They accountable. were required to follow the law. Additionally, supreme justice, a court I as imposed thousands of cases which have

have reviewed They consequences people were and held accountable. required to follow the law. experiences approach I Those inform how what should

this case. I come to this case with be judges that circuit court unremarkable observation supreme justices court should be held follow law. clearly requires judges "person- 79. The law consequences

ally" deportation advise defendants of entering guilty plea. emphasis With when underscoring unusual requirement, legislature actually explicit wording, detailing sets forth the what say. judge Judges is to are to: personally Address the defendant and advise the de- you "If are a citizen of the fendant as follows: not America, you United States of are advised that a guilty you of or no contest for the offense with which charged may deportation, are the result exclusion country from admission to this or the denial of natu- ralization, under federal law." 971.08(l)(c). Wis. Stat. legislature remedy

¶ 80. The mandates the of plea judge personally explain if withdrawal the fails to deportation consequences. prerequisites met, If the are provide remedy "maybe the statute plea not for a does "plea upon compliance withdrawal" or withdrawal clearly Rather, with a maze of conditions." the law provides judgment the court "shall vacate" the "permit plea." and the the defendant to withdraw by If required a court fails to advise a defendant as (l)(c) plea sub. and a defendant later shows that the is likely deportation, to result in the defendant's exclu- country or denial of natu- admission to this sion from ralization, court on the defendant's motion shall the judgment against the defendant any applicable vacate plea the permit the defendant to withdraw plea. enter another 971.08(2). Stat.

Wis. judge ¶ the circuit court failed to follow 81. Here give deportation warning not as the law. He did mandated. majority supreme

¶ And the of the court fails following remedy the clear follow the law. Instead of major- statute, the set forth in the withdrawal ity engrafts of conditions onto the statute. One all sorts lawyer" "Philadelphia to follow the need almost be majority byzantine added conditions that the maze of embraces. majority opinion consequence of the 83. The not a mere error of law but an error

unfortunate. It is liberty. life and that affects similarly and others 84. For this defendant majority appears

situated, to erase from the statu- remedy. tory legislatively In reach- mandated text majority ignores express ing conclusion, the its purpose language statute, behind Wis. Stat. of the interpreting it. 971.08, and our case law § 971.08 Because I conclude that Wis. Stat. says required are to follow means what it and that we respectfully I dissent. it,

I ¶ 86. This case involves a non-citizen defendant required deportation warning.1 who did not receive the analysis language Paramount to the is the the statute. 971.08(2) provides 87. Wisconsin Stat. that if personally

a court has failed to inform a defendant that plea may deportation, result in it and is later shown plea likely deportation, to result "the any ap- court on the defendant's motion shall vacate plicable judgment against permit the defendant and to withdraw the and enter another defendant plea." (Emphasis supplied.) ¶ 88. Rather than follow the dictates of the stat- majority imposes ute, the restraints Wis. Stat. Escalona-Naranjo, § 974.06 and State v. 185 Wis. 2d (1994), questioning 168, 517 N.W.2d 157 without they apply. superimposing § whether In and Escalona-Naranjo onto the clear words of the statute, majority rewrites the statute for the defendant and similarly they required others situated. Now are meet a multitude of conditions that cannot be found anywhere in the statute. majority's response essence, In to the legislative

clear mandate is as follows: 1 Wisconsin's people non-citizens include who have lawful (a permanent "green card"), resident status refugees asylees legal nonimmigrants (including certain visas). student, work, those on or some temporary other In addition, as of Wisconsin is home to an estimated 100,000 immigrants. Jeffrey undocumented S. Passel & Cohn, Immigrant D'Vera Population: "Unauthorized National (Feb. Trends, 1, 2011), and State 2010" available at http://www.pewhispanic.org/files/reports/133.pdf. permit plea

(cid:127) withdrawal, vacate and OK, we shall alleges post- only that second if the defendant but constitutionally ineffective counsel "was conviction failing postconviction for to motion in the second counsel's] postconviction [first a claim about raise bring plea failing with- for to ineffectiveness postconviction motion." drawal claim in the first Majority op., ¶ 51.

(cid:127) permit plea withdrawal, and OK, we shall vacate alleges postconvic- [first only if defendant

but constitutionally counsel] ineffective in the "was tion postconviction the motion for raise first ¶ Id,., 51. withdrawal claim." (cid:127) permit plea withdrawal, vacate and OK, we shall "why alleges only his and how if the defendant

but constitutionally ineffec- counsel was Id., tive." 36.

(cid:127) permit plea withdrawal, OK, shall vacate and we only reason" if the defendant shows "sufficient

but bringing in motion or the claim an earlier for not appeal. Id., 34.

(cid:127) permit plea withdrawal, vacate and OK, we shall only if defendant demonstrates

but "clearly stronger" previ- than made is claim now ously Id., claims.2 made 2 "clearly stron analysis, majority extends In its Starks, 69,WI 349 Wis. 2d State v. 2013

ger" standard from explained I 274, Majority op., 45-46. As ¶¶ 833 N.W.2d Starks, "clearly stronger" is too my standard dissent many applied in situations. rigid practically be and cannot J., 94, (Bradley, Starks, 98-102 dissent Wis. 2d ¶¶ 349 Supreme States runs counter to United ing). The standard bright-line adopt which has declined precedent, Court Pinholster, 131 S. evaluating deficiency. Cullen v. for standards (2011). Further, it is inconsistent with Strick 1406 Ct. (1984), requires which Washington, U.S. land v.

(cid:127) permit plea OK, we shall vacate withdrawal, only alleges

but if the defendant "sufficient mate- e.g., why, who, what, rial where, when, facts — how"—that if true would entitle the defendant to sought. ¶ Id., the relief 37. 971.08(2) Nothing

¶ requires § 90. in Wis. Stat. a bring defendant a motion to under withdraw the auspices Nothing § of Wis. Stat. 974.06. in Wis. Stat. 971.08(2) § indicates that a motion to withdraw can be brought under another Indeed, statute. courts have repeatedly considered motions to withdraw under Wis. 971.08(2) § Stat. without reference to Wis. Stat. e.g., Negrete, § See, 974.06. v. State 2012 92,WI 343 Douangmala, 1, Wis. 2d 749; 819 N.W.2d State v. 2002 Vang, 62,WI 253 173, Wis. 2d 1; 646 N.W.2d State v. App 118, 2010 WI 251, 328 Wis. 2d 789 115; N.W.2d App Bedolla, State v. 2006 WI 295 Wis. 2d 720 N.W.2d 158. apparent

¶ majority incorpo- 91. The reason the Escalona-Naranjo rates the 974.06 and the standard is because it considers the defendant's motion un- 971.08(2). timely Majority op., under Wis. Stat. 66. statutory procedures postcon- Yet, unlike the other for an evaluation of the attorney's reasonableness of an perfor- mance totality under the of the circumstances. Although "clearly the stronger" is one factor to consider in Strickland, applying it is not the many test. There are in situations which the prove standard will unworkable. This case is one of those situations. Given that it appears the defendant would have been successful in both the resentenc- 971.08(2) ing motion motion, and the Wis. Stat. § a court cannot determine postconviction whether his representation was deficient without considering whether adequately she informed Romero-Georgana what, options of his any- if thing, Romero-Georgana asked her to do on his behalf. 971.08(2) imposes time no motions, Wis. Stat. viction e.g., §§ and 974.02 809.30 See, Wis. Stat. limitations. appeal or motion (requiring to file notice defendant days ser- seeking postconviction after within relief record). transcript court or vice expect impractical a defendant It is ground timely a for which a on to withdraw move Vang, knowledge. explained in As have no he would anticipates "[t]he ¶ 14, statute Wis. 2d judgment and withdraw to vacate the motion plea following qualifying event be submitted will right who to defendants and reserves the future particular they harm." have suffered demonstrate qualifying Notably, de- event, notice of long portation, the timeframes for after often be will filing Stat. relief under Wis. for expired. One commentator have §§ and 809.30 the a decade for more than observed, "it often takes ICE) (now proceedings." deportation initiate INS How Cody Comment, A Problem Harris, Proof: of Routinely De- Records Court Destruction Routine of Remedy, Statutory 1791, 1805 stroys L. Rev. 59 Stan. a (2007).3 suggestion majority's that Romero- Thus, the 3 argument timeliness attempts justify its majority The history of Wis. Stat. legislative the referencing in a footnote by in 1983 the 67 n.14. It observes Majority op., ¶ 971.08. § 120-day time limit for a to eliminate amended statute was 971.08(1) be Stat. § under Wis. to withdraw filing motions 809.30, Stat. brought §§ under Wis. be those claims could cause suggestion, majority's Contrary to the 974.02, or 974.06. analysis to our no illumination provides 1983 amendment Stat. current Wis. of the the enactment predates it because 971.08(2). legislature man 1985 that It was not until remedy. required warning along its with deportation dated the time suggests that no above, very language its As discussed was intended. limit

Georgana's untimely motion would be under Wis. Stat. 971.08(2) supported by practicality by neither nor the text of the statute.

II majority's ¶ 94. The failure to honor the statu- tory language only legislative undermines not expressed by intent as the clear statute, words of the important purpose but also the behind Wis. Stat. passed § 971.08. When it was intended to safeguard, ensuring serve as a that a non-citizen unwittingly plead guilty defendant not because he was significant potential consequences unaware of the deportation.4 landscape immigration policy The changed dramatically practice ensuing has over the years making safeguards the need for even more pronounced.5 Currently, being deported non-citizens are Reportedly, eight years

in record numbers.6 in the last nearly people deported. two million were Of those, "[t]wenty percent 394,000 about the cases in- —or —of crimes, people including volved convicted of serious drafting The files to Wis. Stat. note that enactment legislation of similar "go[es] in other long states way to alleviate hardship and unfairness involved when an alien unwittingly pleads guilty or nolo contendere a charge being without immigration informed of the consequences of plea." files, such a Drafting 1985 Wis. Act on file with the Legislative Wis. Reference Bureau. changes The legal in the landscape are discussed in Chang, Vivian Where Do We Go Here: Colloquy Plea from Warnings Immigration and Consequences Post-Padilla, 45 U. (2011). Mich. J.L. Reform 193 6 Immigration DHS Office of Report: Statistics Annual "Immigration 2012," Enforcement Actions: available at http://www.dhs.gov/sites/default/files/publications/ois _enforcement_ar_2012_1 .pdf.

566 may drug-related have committed offenses." Others including only violations.7 infractions, traffic minor permanent long-term have residents who lawful "Even in the are of their lives United States lived much immigration deportation subject as a detention Allegra consequence of criminal arrest conviction." Criminal-Immigration McLeod, The U.S. Conver- M. Undoing, gence L. Rev. Am. Crim. and Its Possible (2012). 105, 113 change immigra- Commenting in the on the landscape, Supreme Court United States

tion the impor- changes the have the how exacerbated observed deportation of for non-citizens to be aware the tance entering guilty plea: consequences when legal importance advice for non- The of accurate impor- accused of has never been more citizens crimes integral part indeed, [D]eportation is an tant. ... — part penalty important sometimes most —of may imposed who be on non-citizen defendants specified guilty to crimes. plead (2010). Kentucky, 356, 364 v. 559 U.S. Padilla obligation 97. The Padilla court focused on attorney Amendment to under the Sixth of a defense potential deportation conse- non-citizens about advise quences Id. It arise criminal convictions. from may such be that the absence of advice determined Id. of assistance of counsel. basis for a claim ineffective obligation not, however, It did address at 360.8 presiding a non-citizen when over the the court proceeding. in a criminal Thompson, Deportations Minor Ginger More Follow

Crimes, Show, Times, Apr. Records New York 8 The court observed: published post

¶ 98. In its first decision, -Padilla Appeals the Wisconsin Court of also referenced the consequences deportation. severe Mendez, State v. App 57, 2014 WI 354 Wis. 2d 847 N.W.2d 895. Describing the defendant, it noted that Mendez came country years to this in 1997 when he was fourteen old Id., never returned to Mexico. 3. He is married together they to a United States citizen and have a four-year-old child who is a United States citizen. The "despite great court observed that the benefit of a length potential prison reduction in the of the sen- might tence, a rational non-citizen defendant have rejected plea bargain a and risked trial for the chance avoiding deportation." Id., at Padilla, 16. Like Mendez court focused on the ineffective assistance of duty counsel claim and did not discuss the of a circuit accepting guilty plea. court when a importance deportation warnings 99. The duty judge give and the of a them was addressed recently by Appeals. People the New York Court of v. (2013). Peque, 3 N.E.3d 617 It commented that under contemporary upon law, a non-citizen's removal felony practically conviction "is inevitable," and de- penalty upon scribed this as an "enormous non-citizen wide-ranging consequences convicts," with for life liberty:

After being country, removed from the the defendant rarely, ever, if has in-person further any contact with Immigration complex, legal specialty law can be and it ais of its own. Some represent facing members of the bar who clients charges, criminal both, in may either state or federal court or not be well deportation versed in it. consequence ... But when the is truly clear, case, duty it give as was in this correct advice equally clear. Padilla, 559 U.S. at 369. remaining Additionally,

family in America. members effectively strips any the defendant of deportation country, thus depriv- had employment he or she this family of critical and his or her ing the defendant support. financial Accordingly, it a court determined that at 630-32.

Id. possible required a of the to inform defendant was entering guilty plea. consequences deportation a Id. at legislation

¶ Wis- states have like 100. Several requiring affirmatively courts to an ac- take consin's possible informing depor- in of the role defendants tive plea. e.g., consequences entering guilty See, a tation § 1016.5; Ann. Conn. Stat. Penal Code Gen. Cal. 54-lj; § Rule Proc. § 16-713; D.C. Fla. Crim. Code 17-7-93(c); 3.172(c)(8); §Ann. Rev. Stat. Ga. Code Haw. 2.8(2)(b)(3); § Rule Proc. 802E-2; Iowa Crim. Ann. 278, § Minn. Crim. Laws, 29D; ch. Rule Mass. Gen. § 46-12-210; Crim. 15.01; Code Ann. N.Y. Proc. Mont. 220.50(7); § Ann. Gen. Stat. Proc. Law Ann. N.C. § Code Ann. Rev. § 15A-1022; 2943.031; Ore. Ohio Rev. § § 12-12-22; Tex. Code 135.385; R.I. Gen. Laws Stat. 26.13(a)(4); Ann., tit. Ann., art. Vt. Stat. Crim. Proc. 6565(c)(1); § § Rev. 10.40.200. Wash. Code acknowledged "by ¶ has en- 101. This court 971.08(l)(c) (2), acting § codi- Wis. & Wisconsin Stat. protections contemplated Padilla, in but fied the placed duty rather court, warn on the circuit attorney." solely Negrete, 2dWis. than on the remedy By circumventing in set forth 33 n.12. 971.08(2), majority § minimizes the Stat. Wis. duty purpose judge's of the stat- and undermines ute.

Ill precedent interpreting 102. Our the statute strictly requirements has held circuit courts to the Douangmala, Wis. Stat. In 971.08. State v. this court 971.08(2) determined that Wis. Stat. means what it expressly required states: if the defendant makes the showing, judgment "the circuit court 'shall' vacate the permit plea." shall the defendant to withdraw the explained "[t]he 253 Wis. 2d 173, 31. The court presumed word 'shall' in mandatory a statute is to be necessary carry unless a different construction is legislature's Nothing out the clear intent. in Wis. Stat. points interpretation to a different of the word interpretation signifies 'shall' than an that the word mandatory act." Id. Similarly,

¶ Negrete, 103. in ¶ 343 Wis. 1, 23, 2d explained procedures this court required by that the 971.08(2) § Wis. Stat. are clear. All the defendant is required plea to show in order to a withdraw are the 971.08(2): two elements § enumerated in Wis. Stat. 971.08(2) employ To Wis. Stat. § plea, withdraw his however, the defendant's motion must allege first two (1) facts: that the circuit "failfed] court to advise [the] [of defendant deportation the consequences of the plea] defendant's required by as 971.08(l)(c)]"; [§ (2) that the "plea defendant's likely to result in the deportation, defendant's exclusion from admission to country!,] this or denial of naturalization." 971.08(2)). ¶ (quoting Id., 23 § Wis. Stat.

¶ 104. Here, has shown what Negrete requires. given mandatory He was not the warning by guilty plea the circuit court that a could deportation lead to his facing and that he is now deportation. governing Under the statute, Wis. Stat.

570 971.08(2), Romero-Georgana needed § that is all that Douangmala, plea. to withdraw his in order to show ¶ 173, 2d 31. 253 Wis. acknowledge Romero-Georgana's

¶ I 105. § pro 974.06 on a form for Wis. Stat. motion was se why majority Perhaps was misled. this is motions. only § is in citation to Wis. Stat. However, the preprinted on the first and second labels the form's pages. the attached the text of the motion nor Neither any § reference to a 974.06 motion. makes affidavit recognizes "Romero-Georgana majority Even the likely timely if he had withdrawn his could have 971.08(2) op., Majority ¶ brought a motion." 971.08(2) Nothing our ¶ or in Wis. Stat. reviewing ignore precedent permits court to a duty failure of the defendant's circuit court's because correctly action or A defendant's label the motion. duty Wis. the court under cannot alter the of inaction 971.08(l)(c). Vang, 2d 14. Fur- 328 Wis. Stat. Romero-Georgana's precedent, thermore, under our selecting wrong not serve as label does in confusion his claim. a bar to have a well-settled courts 107. Wisconsin construing pro pleadings liberally

policy se they prisoners a cause of contain to determine whether n.10, 284 Love, 29 2005 WI State v. action. Terry (quoting rel. State ex 2d 700 N.W.2d Wis. (1973)) Traeger, 490, 496, N.W.2d 60 Wis. 2d v. ("[W]e judging policy must follow liberal by sufficiency complaints pro filed unlettered se of L'Minggio indigent prisoners."); v. ex rel. State 2d 667 N.W.2d Gamble, 16, 263 Wis. 2003 WI ("At pro well-settled outset, note that it is 1 we liberally complaints to deter- construed are be se give any complaint can rise facts that if the states mine 571 action."); Sullivan, ato cause of Lewis v. 2dWis. (1994) ("[P]ro complaints 157, 164, 524 N.W.2d 630 se prisoners liberally determining must be construed in give whether the stated facts tion."). rise to a cause of ac- explicitly ¶ 108. This court has instructed courts pleading, to look to the label, contents a not its prisoner determine if the is entitled to relief: re-emphasize today We what we previously. have said A presented prisoner's pro court with a se document seeking relief must look to the facts stated in the document to determine petitioner may whether the be any alleged entitled to relief if the proved. facts are appellate Neither a trial nor an deny court should prisoner's pleading based on its label rather than on allegations. necessary its the court should relabel the If prisoner's pleading proceed from there. Israel,

bin-Rilla v. 514, 521, 113 Wis. 2d 335 N.W.2d (1983) (emphasis supplied). Romero-Georgana In case, this filed his attorney. motion without the assistance of an The contents of the motion and attached affidavit relate to possible the circuit court's failure to inform him of the deportation consequences of his and the fact that facing deportation.9 only he is now The citation to Wis. pre-printed Stat. 974.06 in the motion is its labels. 9 The motion states:

Romero-Georgana is a native of Mexico and is not a citizen of the Romero-Georgana United States of America. contends that pleas trial court may failed to advise him that if he no contest he deported. be Romero-Georgana pled degree no contest to one count of first sexual through assault of a child. did the use of Rights verify the Plea Questionnaire/Waiver of form that he did question regarding deportation. However, understand to deflect from the attempt In apparent an the clear court's failure to follow and this circuit court's blame on the lays the language, majority statutory and filed se the motion pro defendant who back of the in both text and review. It quotes for petition the attorney Romero-Georgana's comment of footnote the for review was after the petition was appointed who granting the order by and who felt constrained granted her precluding she as interpreted which petition 971.08(2) 67 and Majority op., issue. from a raising n.14.10 completed Romero-Georgana that at the time he contends fully Questionnaire/Waiver Rights he did not of Form that Plea English initialing due to his limited what he was understand by attorney skills, quality interpreters being employed poor his time, him of the the failure of counsel to advise at the Romero-Georgana consequences. that had he known he contends plea upon entering deported the no contest he would

would be guilty plea went to trial. entered a of not have instead (Plea Hearing during plea colloquy At no time did the court 2-4) 17, 2006, pages Transcripts advise Romero- dated November plea consequences entering Georgana deportation of his of the Again, Romero-Georgana not contends he would no contest. fully he had he understood have entered a of no contest deported. have been would facing deportation verify back is indeed To Immigration he submits the to his native land of Mexico #A097-838-176, dated Form File Detainer-Notice of Action 1) (Exhibit 20, 2007. March attorney Romero-Georgana's stated argument At oral petition . after the appointed we were .. "[a]s this court knows up to that and the case had been decided for review was filed attorney "[t]his court's The further stated point under 974.06." stay us to within granting specifically asked order review review, not and that did petition made in the for arguments as a case should be decided argument include an this 971.08(2) by itself." motion ¶ 111. It is not the defendant's fault that give statutorily circuit court failed to mandated 971.08(l)(c) deportation warning. § Wisconsin Stat ex- pressly provides duty that it is the the circuit court give it. attorney appointed

¶ 112. It is not the fault of the petition granted after the for review was this remedy by court fails to follow the statutory language. mandated the clear 971.08(2) § Stat. Wisconsin ex- provides pressly preconditions that if the met, are remedy permit is "shall vacate . . . and the defendant plea to withdraw the . . . ." ¶ 113. A defendant's action or inaction does not duty give deporta- relieve the circuit court of its warning. attorney's tion Nor does an action or inaction give license to this court to rewrite the words of a clearly legislative statute or circumvent the mandated remedy.

IV language ¶ 114. I conclude that the of Wis. Stat. 971.08(2) § clear. If a defendant shows that the court possible deportation did not advise him of the quences conse- plea likely of a and that the defendant is to be deported plea, a as result of his the court "shall" vacate 971.08(2). the sentence. Wis. Stat. requirement

¶ 115. The statute includes no the defendant follow Wis. Stat. 974.06 to obtain such mandatory relief. Its directive to the courts is strictly Accordingly, should be construed. because the circuit court did not inform of the possible deportation consequences of his and he is 971.08(2) facing deportation, requires now Wis. Stat. permitted plea. that he be to withdraw his above, I respect- the reasons set forth 116. For dissent. fully to state that Chief Justice I am authorized this dissent. joins ABRAHAMSON

SHIRLEY S.

Case Details

Case Name: State v. Andres Romero-Georgana

Court Name: Wisconsin Supreme Court

Date Published: Jul 23, 2014

Citation: 849 N.W.2d 668

Docket Number: 2012AP000055

Court Abbreviation: Wis.