STATE of Wisconsin, Plaintiff-Respondent, v. Fernando ORTIZ-MONDRAGON, Defendant-Appellant-Petitioner.
No. 2013AP2435-CR
Supreme Court of Wisconsin
July 9, 2015
2015 WI 73 | 866 N.W.2d 717
Oral argument April 21,
For the defendant-appellant-petitioner, there were briefs by Michelle L. Velasquez, assistant state public defender, and oral argument by Michelle L. Velasquez.
For the plaintiff-respondent, the cause was argued by Nancy A. Noet, assistant attorney general, with whom on the brief was Brad D. Schimel, attorney general.
An amicus curiae brief was filed by Barbara Graham on behalf of the Catholic Charities Legal Services for Immigrants, Milwaukee.
¶ 1. ANNETTE KINGSLAND ZIEGLER, J. This is a review of a published decision of the court of appeals,1 which affirmed the Brown County Circuit Court‘s2 judgment of conviction and order denying Fernando Ortiz-Mondragon‘s (“Ortiz-Mondragon“) post-conviction motion to withdraw his no-contest plea to substantial battery as an act of domestic abuse.3
¶ 2. Ortiz-Mondragon argues that the circuit court erred by denying his motion
¶ 3. Specifically, Ortiz-Mondragon argues that his trial counsel performed deficiently by failing to inform him that his no-contest plea to substantial battery, with a domestic abuse enhancer, was certain to result in his deportation and permanent exclusion from the United States. He argues that these immigration consequences were clear and certain because his substantial battery was a “crime involving moral turpitude” under federal immigration law, thereby rendering him automatically deportable and permanently inadmissible.4 Ortiz-Mondragon further argues that his trial counsel performed deficiently by failing to research or consider the possible immigration consequences of the plea agreement. He argues that this deficient performance prejudiced him because he would have insisted on going to trial had he known that his plea to substantial battery would subject him to mandatory deportation and permanent exclusion from the United States. He reasons that, because he has lived, worked, and raised a family in the United States since 1997, he would have sought a plea agreement that avoided these immigration consequences. If he were unable to secure such a plea agreement, he argues that he would have gone to trial to leave open the possibility of remaining in the United States.
¶ 4. The State argues that the circuit court correctly denied Ortiz-Mondragon‘s motion to withdraw his plea. The State argues that trial counsel‘s performance was not deficient. The State contends that, because federal law is not succinct and straightforward with respect to the possible immigration consequences of Ortiz-Mondragon‘s plea, trial counsel gave correct advice under Padilla when he advised Ortiz-Mondragon that the “plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law.” Specifically, the State contends that federal immigration law does not clearly and succinctly provide that Ortiz-Mondragon‘s conviction for substantial battery would constitute a crime involving moral turpitude. The State further argues that, if we determine that trial counsel‘s performance was deficient, we should remand the matter to the circuit court for an evidentiary hearing on the issue of whether the deficiency prejudiced Ortiz-Mondragon.
¶ 5. We conclude that Ortiz-Mondragon is not entitled to withdraw his no-contest plea to substantial battery because he did not receive ineffective assistance of counsel. Specifically, his trial counsel did not perform deficiently. Because federal immigration law is not “succinct, clear, and
I. FACTUAL AND PROCEDURAL BACKGROUND
¶ 6. In 1997 Ortiz-Mondragon came to the United States from Mexico. In 2002 he moved to Wisconsin to work in the agricultural industry. He has four children, all of whom are United States citizens and reside in Wisconsin.
¶ 7. On September 14, 2012, the State filed a criminal complaint charging Ortiz-Mondragon with: (1) substantial battery, contrary to
¶ 8. According to the complaint, Ortiz-Mondragon violently attacked J.S., who was his cohabiting girlfriend at the time and who is the mother of two of his children. Ortiz-Mondragon became enraged because J.S. was talking to a male neighbor on the phone. Ortiz-Mondragon jumped on top of J.S. while she was talking on the phone in bed. Their two young children were in the room with them. Ortiz-Mondragon put his hands around J.S.‘s neck and began squeezing. J.S. had trouble breathing and thought that Ortiz-Mondragon was going to kill her. When J.S. managed to get off of the bed and tried to leave the bedroom, Ortiz-Mondragon punched her in the face and mouth and hit her in the back of the head. J.S.‘s head bled profusely. Ortiz-Mondragon also broke J.S.‘s phone in half. When J.S. later sought treatment for her injuries, a wound on her face required five staples.
¶ 9. On September 24, 2012, Ortiz-Mondragon waived his right to a preliminary examination and was bound over for trial. That same day, the State filed an information that contained the same five charges as the complaint.
¶ 11. On November 27, 2012, the circuit court held a plea and sentencing hearing. Ortiz-Mondragon‘s attorney, Raj Kumar Singh (“Attorney Singh“), informed the court that the State recently made a plea offer to the defendant. Attorney Singh stated that he had “presented” the State‘s plea offer to Ortiz-Mondragon, “given him paperwork to use to study it, given him information to use in counseling, and [Ortiz-Mondragon] has just now confirmed that now he‘s made his final decision. He would like to take the offer.”
¶ 12. Attorney Singh then handed a plea questionnaire and waiver of rights form, along with “some other papers,” to the circuit court. Ortiz-Mondragon had signed the plea questionnaire and waiver of rights form, which stated, inter alia: “I understand that if I am not a citizen of the United States, my plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law.” Attorney Singh had signed the plea questionnaire and waiver of rights form immediately below the following affirmation: “I am the attorney for the defendant. I have discussed this document and any attachments with the defendant. I believe the defendant understands it and the plea agreement. The defendant is making this plea freely, voluntarily, and intelligently....”
¶ 13. Ortiz-Mondragon then stated that he wished to plead no contest to three counts pursuant to the plea agreement. The circuit court then informed him of the possible immigration consequences of his pleas.
THE COURT: All right. The law requires I address you now and advise you of the following: If you‘re not a citizen of the United States, the plea you offer me could result in your deportation, the exclusion of admission, or the denial of naturalization under federal law....
These are collateral consequences to [sic] on top of whatever I sentence you to. Do you understand that?
THE DEFENDANT: Yes.
THE COURT: All right. Do you still wish to offer me these pleas then?
THE DEFENDANT: Yes.
¶ 14. The circuit court then confirmed that Ortiz-Mondragon and his attorney had discussed the plea questionnaire and waiver of rights form, which contained a warning about possible immigration consequences of a conviction.
THE COURT: All right. In my right hand I have a plea-questionnaire-and-waiver-of-rights form. I have the standard jury instruction for the charge of substantial battery with intent to cause bodily harm as well as the elements of criminal damage and disorderly conduct. Do you see all these documents?
THE DEFENDANT: Yes.
THE COURT: Did you sign the plea questionnaire?
THE DEFENDANT: Yes.
THE COURT: Before you signed it, did you read it over carefully?
THE DEFENDANT: Yes.
THE COURT: And while you were going over all these documents, did you have an opportunity to fully discuss it with your attorney, Mr. Singh?
THE DEFENDANT: Yes. THE COURT: And are you satisfied with his representation thus far?
THE DEFENDANT: Yes.
¶ 15. The court concluded: “I‘m going to find the defendant‘s pleas today to be freely, voluntarily, and intelligently entered on the record I have made. I‘ll incorporate in support of that the plea-questionnaire-and-waiver-of-rights form.” The court then determined that “[t]he facts do support his pleas” and “adjudge[d] him guilty today of substantial battery and criminal damage to property and disorderly conduct.”
¶ 16. The State then explained that, pursuant to a joint recommendation, it was going to recommend “three years’ probation with four months’ jail and other standard conditions of probation.” The State explained that it had “consulted with the victim,” Ortiz-Mondragon committed a “fairly violent offense,” and he had no prior criminal record. The State also noted that although Ortiz-Mondragon “was on an immigration hold at the... initial appearance,” he was not “on any other type of hold at all.”
¶ 17. The victim of Ortiz-Mondragon‘s domestic abuse, J.S., then spoke to the court. She stated that she would like for the felony battery charge to be reduced to a misdemeanor. J.S. stated that Ortiz-Mondragon has two children with her and also has two other children, and they “were trying to keep them here in the states, but if he ends up with a felony charge, that‘s not going to happen.” The court informed J.S. that Ortiz-Mondragon had just been found guilty of a felony. J.S. then stated that probation and four months in jail were “fine” with her.
¶ 18. Attorney Singh then asked the court to grant Ortiz-Mondragon sentence credit, which the court granted. The court then asked Attorney Singh whether Ortiz-Mondragon has an Immigration and Customs Enforcement hold.6 Attorney Singh stated, “I think there is, but the information I get is second-hand.”
¶ 19. Ortiz-Mondragon then apologized for his behavior and stated that he “never had a problem like this before.”
¶ 20. The court then proceeded to sentence Ortiz-Mondragon. It stated that its sentence would be based on “the protection of the public, punishment of the defendant, the defendant‘s rehabilitative needs, and other factors.” The court noted that it received a joint recommendation and that it “defer[s] a little bit to [the State‘s] judgment” in “these kinds of cases because [the State] handle[s] so many of them....” The court then discussed the “great impact parents’ behaviors have on their children” and encouraged Ortiz-Mondragon to “do a better job of being a parent and an adult.” The court then adopted the joint recommendation, withheld sentence on all three counts, placed Ortiz-Mondragon on probation for three years, and sentenced him to four months in the county jail as a condition of probation.
¶ 21. J.S. then asked the court if Ortiz-Mondragon will “be let go” after his jail sentence. The court stated that he would be let go “if the immigration doesn‘t put a hold on him. If the immigration people put a hold on him, that‘s a federal issue. Our officers have nothing to do with that.”
¶ 22. After Ortiz-Mondragon completed his jail sentence,7 Immigration and Customs
¶ 23. On September 17, 2013, Ortiz-Mondragon filed a postconviction motion to withdraw his no-contest plea to substantial battery on grounds of ineffective assistance of counsel. In the motion, Ortiz-Mondragon argued that his substantial battery as an act of domestic abuse was a “crime involving moral turpitude” under federal immigration law, thereby rendering him subject to mandatory deportation and permanent exclusion from the United States. He argued that these consequences of his substantial battery conviction were clear and that under Padilla his attorney performed deficiently in failing to inform him of these consequences. Ortiz-Mondragon further argued that this deficiency prejudiced him. He contended that, had he known the immigration consequences of this conviction, he would have sought a different plea agreement or would have insisted on going to trial in order to preserve the possibility of remaining in or returning to the United States to be with his family.
¶ 24. On October 9, 2013, the circuit court issued a written order denying Ortiz-Mondragon‘s motion without a Machner hearing.9 The court first held that Ortiz-Mondragon‘s “trial counsel was not required to provide [Ortiz-Mondragon] with unequivocal advice regarding the immigration-related consequences of his plea because the law elucidating the consequences is not succinct and straightforward.” The court reasoned that “a ‘crime involving moral turpitude’ is a broad, rather than specific, classification of crimes,” and Ortiz-Mondragon failed to prove that his substantial battery was a crime involving moral turpitude. Quoting Padilla, 559 U.S. at 369, the circuit court stated that, “[b]ecause the law is not succinct and straightforward, [Ortiz-Mondragon‘s] counsel ‘need do no more than advise [Ortiz-Mondragon] that pending criminal charges may carry a risk of adverse immigration consequences.‘” Ortiz-Mondragon “does not assert that trial counsel did not so advise him, and the record affirmatively establishes that trial counsel did so advise him.”
¶ 25. The circuit court discussed the immigration warnings and advice that Ortiz-Mondragon received. In particular, the court noted that Ortiz-Mondragon “acknowledges that he was given equivocal immigration warnings by both the Court,
¶ 26. On October 7, 2014, the court of appeals affirmed the circuit court‘s order denying Ortiz-Mondragon‘s motion to withdraw his plea. The court of appeals explained that Ortiz-Mondragon “has not identified clear authority indicating any of the crimes to which he pled were crimes of moral turpitude.” State v. Ortiz-Mondragon, 2014 WI App 114, ¶ 13, 358 Wis. 2d 423, 856 N.W.2d 339. The court of appeals reasoned that “[i]f an attorney must search federal court and unfamiliar administrative board decisions from around the country to identify a category of elements that together constitute crimes of moral turpitude, and then determine whether a charged crime fits that category, then the law is not ‘succinct, clear, and explicit.‘” Id., ¶ 12 (quoting Padilla, 559 U.S. at 368). It concluded that “Ortiz-Mondragon‘s attorney did not perform deficiently by failing to unequivocally inform him that his plea would result in deportation and permanent inadmissibility.” Id., ¶ 13. The court of appeals did not address the issue of prejudice.
¶ 27. On November 6, 2014, Ortiz-Mondragon filed a petition for review, which we granted on December 18, 2014.
II. STANDARD FOR PLEA WITHDRAWAL AND STANDARD OF REVIEW
¶ 28. “In general ‘a circuit court should freely allow a defendant to withdraw his plea prior to sentencing for any fair and just reason, unless the prosecution [would] be substantially prejudiced.‘” State v. Lopez, 2014 WI 11, ¶ 2, 353 Wis. 2d 1, 843 N.W.2d 390 (alteration added in Lopez)(emphasis added) (quoting State v. Jenkins, 2007 WI 96, ¶ 2, 303 Wis. 2d 157, 736 N.W.2d 24) (internal quotation marks omitted). In contrast, “the general rule [is] that a defendant seeking to withdraw a guilty or no contest plea after sentencing must prove manifest injustice by clear and convincing evidence.” State v. Negrete, 2012 WI 92, ¶ 29, 343 Wis. 2d 1, 819 N.W.2d 749 (emphasis added) (citations omitted). Ineffective assistance of counsel is one type of manifest injustice. State v. Taylor, 2013 WI 34, ¶ 49, 347 Wis. 2d 30, 829 N.W.2d 482.
¶ 29. “The clear and convincing standard for plea withdrawal after sentencing, which is higher than the ‘fair and just’ standard before sentencing, ‘reflects the State‘s interest in the finality of convictions, and reflects the fact that the presumption of innocence no longer exists.‘” Id., ¶ 48 (quoting State v. Cross, 2010 WI 70, ¶ 42, 326 Wis. 2d 492, 786 N.W.2d 64). “The higher burden ‘is a deterrent to defendants testing the waters for possible punishments.‘” Id. (quoting State v. Nawrocke, 193 Wis. 2d 373, 379-80, 534 N.W.2d 624
(Ct. App. 1995)). “Disappointment in the eventual punishment does not rise to the level of a manifest injustice.” Id., ¶ 49 (citing Nawrocke, 193 Wis. 2d at 379).
¶ 30. “A claim of ineffective assistance of counsel is a mixed question of fact and law.” State v. Carter, 2010 WI 40, ¶ 19, 324 Wis. 2d 640, 782 N.W.2d 695 (citations omitted). “We will uphold the circuit court‘s findings of fact unless they are clearly erroneous.” Id. (citation omitted). “Findings of fact include ‘the circumstances of the case and the counsel‘s conduct and strategy.’ ” Id. (quoting State v. Thiel, 2003 WI 111, ¶ 21, 264 Wis. 2d 571, 665 N.W.2d 305) (quotation marks omitted). “Moreover, this court will not exclude the circuit court‘s articulated assessments of credibility and demeanor, unless they are clearly erroneous.” Id. (citing Thiel, 264 Wis. 2d 571, ¶ 23). “However, the ultimate determination of whether counsel‘s assistance was ineffective is a question of law, which we review de novo.” Id.
III. ANALYSIS
¶ 31. “Both the United States Constitution and the Wisconsin Constitution guarantee criminal defendants the right to counsel.” Carter, 324 Wis. 2d 640, ¶ 20 (citing
¶ 32. “Whether a convicted defendant received ineffective assistance of counsel is a two-part inquiry.” Id., ¶ 21 (citing Strickland, 466 U.S. at 687). “First, the defendant must prove that counsel‘s performance was deficient.” Id. (citing Strickland, 466 U.S. at 687). “Second, if counsel‘s performance was deficient, the defendant must prove that the deficiency prejudiced the defense.” Id. (citing Strickland, 466 U.S. at 687). To succeed on a claim of ineffective assistance of counsel, a defendant must prove both deficient performance and prejudice. Id. (citing Strickland, 466 U.S. at 687). If a defendant fails to prove deficient performance, a reviewing court need not consider whether the defendant was prejudiced. See id., ¶ 36; State v. Franklin, 2001 WI 104, ¶ 13, 245 Wis. 2d 582, 629 N.W.2d 289 (citing Strickland, 466 U.S. at 697).
¶ 33. The Supreme Court in Padilla held “that advice regarding deportation is not categorically removed from the ambit of the Sixth Amendment right to counsel.” Id. at 366. The Court explained that the scope of counsel‘s duty to provide advice regarding deportation depends on whether the immigration consequences of a conviction are clear, succinct, and straightforward. It explained that counsel‘s duty to provide advice regarding deportation “is more limited” in “situations in which the deportation consequences of a particular plea are unclear or uncertain.” Id. at 369. Specifically, “[w]hen the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Id. (emphases added). “But when the deportation consequence is truly clear, . . . the duty to give correct advice is equally clear.” Id.
¶ 34. The Court in Padilla held that defense counsel performed deficiently by incorrectly advising the defendant that he
¶ 35. In order to determine whether Ortiz-Mondragon‘s trial counsel performed deficiently, we must first determine what advice Padilla required Ortiz-Mondragon‘s trial attorney to provide. To that end, we will determine whether immigration law is succinct, clear, and explicit such that Ortiz-Mondragon‘s trial attorney should have discovered that Ortiz-Mondragon would be deported and excluded because his substantial battery was a crime involving moral turpitude. Second, we will determine whether Ortiz-Mondragon‘s trial attorney performed deficiently under Padilla by giving inadequate advice and failing to further research the immigration consequences of the plea agreement. Because we conclude that Ortiz-Mondragon‘s trial attorney did not perform deficiently, we do not address prejudice.
A. Is Immigration Law Succinct, Clear, and Explicit that Ortiz-Mondragon‘s Substantial Battery Was a Crime Involving Moral Turpitude?
¶ 36. The relevant immigration statutes authorize deportation and exclusion of an alien who is convicted of a “crime involving moral turpitude.”10
Under certain circumstances, “[a]ny alien who . . . is convicted of a crime involving moral turpitude . . . is deportable.”
¶ 37. However, the Immigration and Nationality Act, which includes those statutory provisions, does not define “crime involving moral turpitude.” See Padilla, 559 U.S. at 361; id. at 377-78 (Alito, J., concurring). The Code of Federal Regulations also does not define that term. Garcia v. State, 425 S.W.3d 248, 260 (Tenn. 2013) (“[A] crime involving moral turpitude is nowhere defined in the [Immigration and Nationality] Act or in the Code of Federal Regulations.“). The Immigration and Nationality Act does not even list examples of crimes involving moral turpitude. Lopez-Penaloza v. State, 804 N.W.2d 537, 544 (Iowa Ct. App. 2011) (“The [Immigration and Nationality Act] does not define the term ‘moral turpitude’ or list [crimes involving moral turpitude].“).
¶ 38. Thus, because the term “crime involving moral turpitude” is undefined in the immigration statutes, we will consider case law that defines this term. We need to determine whether immigration law is succinct, clear, and explicit such that Ortiz-Mondragon‘s counsel was deficient for failing to discover that the substantial battery offense was a crime involving moral
¶ 39. Even the case law that analyzes whether a crime qualified as a crime involving moral turpitude for purposes of deportation often uses terms of generality, not specifics. “[T]he phrase ‘crime involving moral turpitude’ is notoriously baffling . . . .” Garcia-Meza v. Mukasey, 516 F.3d 535, 536 (7th Cir. 2008). “As a general rule, a crime involves ‘moral turpitude’ if it is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” In re Sanudo, 23 I. & N. Dec. 968, 970 (BIA 2006) (emphasis added); see also Garcia-Meza, 516 F.3d at 536. The term “crime involving moral turpitude” “generally refers to acts that are per se morally reprehensible and intrinsically wrong.” In re Solon, 24 I. & N. Dec. 239, 240 (BIA 2007) (emphasis added) (citing Rodriguez v. Gonzales, 451 F.3d 60, 63 (2d Cir. 2006)). The United States Court of Appeals for the Seventh Circuit has “put [its] own gloss on the term,” “stating that crimes of moral turpitude are usually serious crimes (in terms of the magnitude of the loss they cause or the indignation in the public they arouse) that are committed deliberately.” Garcia-Meza, 516 F.3d at 536 (emphasis added). Thus, even in deportation proceedings themselves, the issue of what constitutes a crime involving moral turpitude is frequently litigated as it is often less than clear.
¶ 40. Even in deportation proceeding cases where the subject of the litigation is whether a crime qualifies as a crime involving moral turpitude, “[n]either the seriousness of the underlying offense nor the severity of the punishment imposed is determinative of whether a crime involves moral turpitude.” Solon, 24 I. & N. Dec. at 240 (citing In re Serna, 20 I. & N. Dec. 579, 581 (BIA 1992)). “[A]t least in the context of assault crimes, a finding of moral turpitude involves an assessment of both the state of mind and the level of harm required to complete the offense.” Id. at 243. “Thus, intentional conduct resulting in a meaningful level of harm, which must be more than mere offensive touching, may be considered morally turpitudinous.” Id. (emphasis added).
¶ 41. In addition to the fact that the amorphous term “crime involving moral turpitude” is not defined, it is even more problematic to ascertain whether a particular crime would qualify as a crime involving moral turpitude. Padilla, 559 U.S. at 378 (Alito, J., concurring) (“As has been widely acknowledged, determining whether a particular crime is . . . a ‘crime involving moral turpitude [(CIMT)]’ is not an easy task.“). Even courts confronted with analyzing crimes involving moral turpitude in deportation proceedings are not uniform in their analysis of whether a crime qualified as a crime involving moral turpitude. Five federal circuit courts of appeals apply a two-step test consisting of a “categorical approach”
and explicit because of a circuit split “surrounding the type of analysis that would be undertaken by the tribunals charged with determining whether a noncitizen has committed an aggravated felony“).
¶ 42. In addition to that circuit split, the United States Attorney General has added to the complexity of determining whether a crime will qualify as a crime involving moral turpitude. In 2008 the United States Attorney General adopted the three-step test for the Board of Immigration Appeals.13 In re Silva-Trevino, 24 I. & N. Dec. 687 (A.G. 2008). However, on April 10, 2015, the Attorney General issued an opinion vacating his In re Silva-Trevino opinion in its entirety. In re Silva-Trevino, 26 I. & N. Dec. 550, 550, 554 (A.G. 2015). That 2015 opinion seemingly leaves unresolved how the Board of Immigration Appeals should determine whether a crime will qualify as a crime involving moral turpitude. That opinion stated that
the Board may address, in this case and other cases as appropriate, the following issues:
1. How adjudicators are to determine whether a particular criminal offense is a crime involving moral turpitude under the [Immigration and Nationality] Act;
2. When, and to what extent, adjudicators may use a modified categorical approach and consider a record of conviction in determining whether an alien has been “convicted of . . . a crime involving moral turpitude” . . . .
Id., 26 I. & N. Dec. at 553.
¶ 43. In her comprehensive guide on the immigration consequences of convictions, Maria Theresa
Baldini-Potermin wrote in 2009 that “[t]he current state of the case law for crimes involving moral turpitude is
¶ 44. Recognizing this lack of clarity, the State argues that, “[w]hile Ortiz-Mondragon‘s conviction may well qualify as a crime of moral turpitude, that conclusion is not ‘clear and certain’ or ‘succinct and straightforward.’ ” The State notes that case law has held that domestic battery is not necessarily a crime involving moral turpitude. The State argues that the relevant case law and the circuit split regarding the two- or three-step test “illustrate the complexity of deciphering whether a given offense is a crime involving moral turpitude.” Thus, because Ortiz-Mondragon‘s conviction does not clearly constitute a crime involving moral turpitude, the State contends “that Ortiz-Mondragon‘s trial attorney was required to do no more than advise him that his plea ‘may carry a risk of adverse immigration consequences.’ ” Padilla, 559 U.S. at 369.
¶ 45. Despite the lack of any clear guidance by statute or jurisprudence regarding whether a particular crime qualifies as a crime involving moral turpitude, Ortiz-Mondragon argues that federal law is “succinct” and “straightforward” in providing that his substantial battery was a crime involving moral turpitude such that his counsel should have given him different advice. He contends that “[s]ome crimes, such as substantial battery, domestic abuse, are universally treated as [crimes involving moral turpitude] . . . .” In both of his briefs to this court, he provides string cites to several cases that, according to him, support that conclusion.14 He argues that this court can determine that his substantial battery was a crime involving moral turpitude simply by looking at
¶ 46. For example, Ortiz-Mondragon relies on two spousal abuse deportation cases arising from California: Grageda v. U.S. I.N.S., 12 F.3d 919 (9th Cir. 1993), superseded by statute on other grounds, and In re Tran, 21 I. & N. Dec. 291 (BIA 1996). In Grageda the Ninth Circuit held “that spousal abuse under [California Penal Code] section 273.5(a) is a crime of moral turpitude.” Grageda, 12 F.3d at 922. In In re Tran the Board of Immigration Appeals expanded the holding in Grageda and concluded “that any violation of section 273.5(a) of the California Penal Code constitutes a crime involving moral turpitude.” In re Tran, 21 I. & N. Dec. at 294. However, the Ninth Circuit in Grageda explained that its holding was limited to spousal abuse and did not include abuse of a cohabitant.15 Grageda, 12 F.3d at 921-22 n. 1.
¶ 47. In a subsequent decision, the Ninth Circuit recognized the narrow holding of Grageda and concluded that a “conviction under Cal. Penal Code § 273.5(a) for abuse of a cohabitant is not categorically a [crime involving moral turpitude].” Morales-Garcia v. Holder, 567 F.3d 1058, 1064-67 (9th Cir. 2009).16 In Morales-Garcia the Ninth Circuit expressly declined to follow In re Tran. Id. at 1066 & n.4. Accordingly, it is unclear whether abuse of a cohabitant, in violation of
¶ 48. Furthermore, Ortiz-Mondragon‘s substantial battery conviction was under a Wisconsin statute, not a California statute. Because the cases cited by
See Morales-Garcia v. Holder, 567 F.3d 1058, 1065 (9th Cir. 2009) (quoting Grageda v. U.S. I.N.S., 12 F.3d 919, 922 (9th Cir. 1993)) (internal quotation marks omitted) (“In Grageda, for example, we held that ‘when a person willfully beats his or her spouse severely enough to cause a traumatic condition, he or she has committed an act of baseness or depravity contrary to accepted moral standards.’ “). Ortiz-Mondragon does not discuss whether substantial battery under
Ortiz-Mondragon do not discuss whether substantial battery under
¶ 49. Ortiz-Mondragon also relies on cases in which courts held that aggravated assault of a peace officer and aggravated child abuse were crimes that qualified as crimes involving moral turpitude. See In re Danesh, 19 I. & N. Dec. 669, 673 (BIA 1988) (aggravated assault of peace officer); Garcia v. Attorney Gen. of United States, 329 F.3d 1217, 1222 (11th Cir. 2003) (aggravated child abuse). However, as Morales-Garcia demonstrates, it is not safe to assume that Ortiz-Mondragon‘s substantial battery of his cohabiting girlfriend is necessarily a crime involving moral turpitude simply because aggravated assault of a peace officer and aggravated child abuse qualify as crimes involving moral turpitude. See Morales-Garcia, 567 F.3d at 1064-67 (holding that abuse of a cohabitant is not necessarily a crime involving moral turpitude, although spousal abuse contrary to California law necessarily is).
¶ 50. As the Board of Immigration Appeals has explained, “it has often been
¶ 51. Based on the foregoing discussion, we conclude that federal immigration law does not succinctly, clearly, and explicitly provide that Ortiz-Mondragon‘s substantial battery was a crime involving moral turpitude such that his counsel‘s advice should have been different. The methodology for determining whether a crime qualifies as a crime involving moral turpitude varies by jurisdiction and is in a “state of flux.” Baldini-Potermin, supra, 3-5; Telford, 22 A.3d at 49-50 (holding that a federal circuit split made the relevant immigration law not succinct, clear, and explicit). The cases that Ortiz-Mondragon cites fail to provide a succinct, clear, and explicit answer as to whether Ortiz-Mondragon‘s substantial battery qualified as a crime involving moral turpitude. Accordingly, his trial counsel “need[ed] [to] do no more than advise [him] that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla, 559 U.S. at 369. We now consider whether his counsel performed deficiently under Padilla.
Further, Ortiz-Mondragon does not explain how the relevant immigration law would be succinct, clear, and explicit if one must consult a record of conviction under the two- or three-step test in order to determine whether a crime qualified as a crime involving moral turpitude. See State v. Telford, 22 A.3d 43, 50 (N.J. App. Div. 2011) (stating that an attorney “would be hard-pressed to provide any clear advice regarding the deportation consequences of a guilty plea” if the immigration advice could “turn on the precise wording of the indictment“). See also Garcia v. State, 425 S.W.3d 248, 260-61 (Tenn. 2013) (holding that immigration law did not succinctly, clearly, and explicitly provide that the defendant‘s conviction qualified as a crime involving moral turpitude); Lopez-Penaloza v. State, 804 N.W.2d 537, 545-46 (Iowa Ct. App. 2011) (same).
B. Whether Ortiz-Mondragon‘s Trial Counsel Performed Deficiently
¶ 52. “To demonstrate deficient performance, the defendant must show that his counsel‘s representation ‘fell below
¶ 53. Ortiz-Mondragon argues that his trial counsel, Attorney Singh, performed deficiently by failing to advise him that his conviction for substantial battery would necessarily result in his deportation and permanent exclusion from the United States. Ortiz-Mondragon concedes that “the circuit [court] found that the record affirmatively demonstrated that Mr. Ortiz-Mondragon received advice about the immigration consequences of his plea in the form of the general warnings contained in the plea questionnaire form as well as the circuit court‘s statutory warnings.” However, he argues that the circuit court‘s statutory warning and the plea questionnaire are “insufficient” “substitute[s] for the advice of counsel.”
¶ 54. Ortiz-Mondragon further argues that his trial counsel performed deficiently by failing to re-search the relevant immigration law and Ortiz-Mondragon‘s immigration status. He argues that “the record contains no evidence that defense counsel investigated Mr. Ortiz-Mondragon‘s immigration status or relevant law.” He contends that “[e]ven when a more general warning is warranted, counsel must reasonably investigate the potential immigration consequences in light of the particular facts of the case because counsel cannot determine the clarity of a consequence without some investigation and research.” He further argues that “[c]ounsel‘s failure to inform a defendant of the adverse immigration consequences when legal research would show that the crimes at issue involved moral turpitude for immigration purposes falls below an objective standard of reasonableness.”
¶ 55. The State argues that, because the immigration consequences of the plea agreement were not succinct, clear, and explicit, “Ortiz-Mondragon‘s trial attorney was required to do no more than advise him that his plea ‘may carry a risk of adverse immigration consequences.’ ” Padilla, 559 U.S. at 369. The State contends that “[t]he court should also uphold the circuit court‘s finding that Ortiz-Mondragon did, in fact, receive such a warning.” The State does not separately address Ortiz-Mondragon‘s argument that his attorney failed to adequately research his immigration status or the immigration consequences of the plea agreement.
¶ 56. We will first determine whether Ortiz-Mondragon‘s trial counsel, Attorney Singh, performed deficiently by giving incorrect advice. We will next determine whether Attorney Singh performed deficiently by failing to adequately research the immigration consequences of the plea agreement.
¶ 57. The record in the circuit court demonstrates that Ortiz-Mondragon knowingly, intelligently, and voluntarily made no-contest pleas to the subject charges. The record further demonstrates that he knew he faced a risk of deportation and exclusion if he entered a no-contest plea to substantial battery. Not only does the record reveal that there were serious known concerns regarding an ongoing Immigration and Customs Enforcement hold,
¶ 58. Moreover, when Ortiz-Mondragon filed a motion to withdraw his plea and request a Machner hearing, the circuit court correctly concluded that his motion did not warrant a hearing. While it is a defendant‘s burden to demonstrate that he is entitled to a Machner hearing by alleging sufficient facts to raise a question of fact, the circuit court correctly concluded that Ortiz-Mondragon‘s proffer was insufficient to warrant a Machner hearing. In fact, the circuit court concluded that, “[u]nder the circumstances, [Ortiz-Mondragon] has not stated sufficient facts which entitle him to a hearing on his postconviction motion. The facts, as alleged, demonstrate that [Ortiz-Mondragon‘s] counsel did not perform deficiently by providing [Ortiz-Mondragon] with equivocal, rather than unequivocal, advice regarding the immigration-related consequences of his plea.” It is well-established that a “circuit court has the discretion to deny the postconviction motion without a Machner hearing ‘if the motion fails to allege sufficient facts to raise a question of fact, presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief.’ ” State v. Roberson, 2006 WI 80, ¶ 43, 292 Wis. 2d 280, 717 N.W.2d 111 (emphasis added in Roberson) (quoting State v. Curtis, 218 Wis. 2d 550, 555 n. 3, 582 N.W.2d 409 (Ct. App. 1998)).
¶ 59. In its order denying Ortiz-Mondragon‘s request for a Machner hearing and his motion to withdraw his plea, the circuit court found that “the record affirmatively establishes that trial counsel did so advise him” that ” ‘pending criminal charges may carry a risk of adverse immigration consequences.’ ” This find-
ing is not clearly erroneous.18 The court noted that Ortiz-Mondragon conceded “that he was given equivocal immigration warnings by both the Court, as required by [Wis. Stat. §] 971.08, and the Plea Questionnaire/Waiver of Rights form.” The circuit court also noted that, at the plea and sentencing hearing, “[Ortiz-Mondragon] confirmed with the [c]ourt that he read [the plea
¶ 60. The immigration advice that Ortiz-Mondragon received stands in stark contrast to the incorrect immigration advice that was given in Padilla. In contrast to the present case, the immigration law in Padilla was “succinct, clear, and explicit” in providing that Padilla‘s conviction made him “eligible for deportation.” Padilla, 559 U.S. at 368. Thus, Padilla‘s attorney was required to do more than advise him that his conviction may carry a risk of adverse immigration consequences. Id. at 369. But “Padilla‘s counsel provided him false assurance that his conviction would not result in his removal from this country.” Id. at 368. That “advice was incorrect.” Id. at 369. By contrast, the advice that Ortiz-Mondragon received was correct.
¶ 61. In fact, had Attorney Singh given the immigration advice that Ortiz-Mondragon argues he
should have given, he may well have given incorrect advice. Because federal immigration law does not succinctly, clearly, and explicitly provide that Ortiz-Mondragon‘s substantial battery was a crime involving moral turpitude, it may well have been inaccurate for Attorney Singh to unequivocally tell Ortiz-Mondragon that the immigration authorities would determine that his substantial battery was a crime involving moral turpitude. Accordingly, it also may well have been inaccurate for Attorney Singh to unequivocally tell Ortiz-Mondragon that he would be deportable and inadmissible to the United States on grounds of moral turpitude if convicted of substantial battery.
¶ 62. We note that incorrect advice that a plea will result in deportation or exclusion, like incorrect advice that a plea will not result in deportation or exclusion, could impact an alien defendant‘s decision-making. The former kind of misinformation might encourage a defendant to reject a beneficial plea offer and thereby subject him or herself to significantly more exposure. The latter kind of misinformation could cause a defendant to be surprised with the actual immigration consequences. Counsel should give accurate advice. Counsel should avoid overstating or understating the possible immigration consequences of a conviction. Ortiz-Mondragon‘s position, if adopted, would require more of an attorney than is required under Padilla because it is not succinct, clear, and explicit that Ortiz-Mondragon‘s substantial battery is a crime involving moral turpitude.19
63. In sum, we conclude that Ortiz-Mondragon‘s trial counsel did not perform deficiently by advising him that the plea agreement “could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law.” That warning was correct and adequate under Padilla because it informed Ortiz-Mondragon that a conviction may
64. We turn briefly to Ortiz-Mondragon‘s argument that his attorney performed deficiently by failing to perform an adequate amount of research. Contrary to Ortiz-Mondragon‘s assertion, the record contains evidence that Attorney Singh researched Ortiz-Mondragon‘s immigration status and relevant immigration law. For example, at the plea and sentencing hearing, the circuit court asked Ortiz-Mondragon‘s attorney, Attorney Singh, whether Ortiz-Mondragon had an Immigration and Customs Enforcement hold. Attorney Singh stated that “I think there is, but the information I get is secondhand,” indicating that Attorney Singh had conducted some research into the matter. Further, at the plea and sentencing hearing, Attorney Singh informed the court that he had “presented” the State‘s plea offer to Ortiz-Mondragon, “given him paperwork to use to study it, [and] given him information to use in counseling....” Immediately thereafter, Attorney Singh handed a signed plea questionnaire and waiver of rights form, along with “some other papers,” to the court. proceedings. See Abdelqadar v. Gonzales, 413 F.3d 668, 673-74 (7th Cir. 2005) (holding that an alien was not deportable under
65. Because the record provides evidence that Ortiz-Mondragon‘s attorney did some level of research regarding the immigration consequences of the plea agreement, we turn now to Ortiz-Mondragon‘s argument that his attorney was deficient for failing to perform additional research. Ortiz-Mondragon argues that additional research would have revealed that his substantial battery is a crime involving moral turpitude. Ortiz-Mondragon relies on Commonwealth v. Balthazar, 16 N.E.3d 1143 (Mass. App. Ct. 2014), and Montes-Flores v. United States, No. 2:11-CR-032-JMS-CMM, 2013 WL 428024 (S.D. Ind. Feb. 4, 2013).
66. In Balthazar the defendant moved to withdraw his guilty pleas to larceny and malicious destruction of property after the Immigration and Naturalization Service began deportation proceedings against him as a result of the convictions. Commonwealth v. Balthazar, 16 N.E.3d 1143, 1145 & n.3 (Mass. App. Ct. 2014). He alleged that he received ineffective assistance of counsel when his attorney told him that he would not be deported because the charges had been reduced to misdemeanors. Id. at 1145, 1147. The Massachusetts Appeals Court held that, “[a]s legal research would have indicated that the crimes were ones involving moral turpitude, we must conclude ... that counsel‘s failure to inform the defendant that pleading guilty to the charges would subject him to presumptively mandatory deportation fell below an objective standard of reasonableness.” Id. at 1147-48.
67. In Montes-Flores the defendant pled guilty to making a material false statement in violation of
68. Balthazar and Montes-Flores are distinguishable. Unlike in those cases, additional research in the present case would not have revealed that the crime at issue clearly qualified as a crime involving moral turpitude. Thus, even had Attorney Singh performed additional research, his immigration advice would not have changed. As we explained earlier, federal immigration law does not succinctly, clearly, and explicitly provide that Ortiz-Mondragon‘s substantial battery is necessarily a crime involving moral turpitude. This lack of clarity presents a far different situation than that in Balthazar and Montes-Flores. Unlike the defendant in Montes-Flores, Ortiz-Mondragon has not shown that the Seventh Circuit has “repeatedly held” that there can be “no question” that his conviction was for a crime involving moral turpitude.20 See Montes-Flores, 2013 WL 428024, at *4. Although the circuit court did not make specific findings with respect to what research Attorney Singh performed and which paperwork he provided to the court and Ortiz-Mondragon, we can infer that the circuit court implicitly found that Attorney Singh performed an adequate amount of research. See State v. Hubanks, 173 Wis. 2d 1, 27, 496 N.W.2d 96 (Ct. App. 1992) (citation omitted) (“The [circuit] court found that Hubanks had not been denied effective assistance of counsel. Although the [circuit] court did not make specific findings of fact, we may assume on
appeal that such findings of fact were made implicitly in favor of its decision.“). Accordingly, unlike defense counsel in Balthazar and Montes-Flores, Attorney Singh was not deficient for failing to perform additional legal research, which would not have changed his immigration advice.
69. We conclude that the immigration advice that Attorney Singh provided to Ortiz-Mondragon was sufficient under Padilla. Because the law is not “succinct, clear, and explicit” with respect to whether Ortiz-Mondragon‘s substantial battery was a crime involving moral turpitude, his trial counsel “need[ed] [to] do no more than advise [him] that pending criminal charges may carry a risk of adverse immigration consequences.” See Padilla, 559 U.S. at 369 (emphases added). Counsel
IV. CONCLUSION
70. We conclude that Ortiz-Mondragon is not entitled to withdraw his no-contest plea to substantial battery because he did not receive ineffective assistance of counsel. Specifically, his trial counsel did not perform deficiently. Because federal immigration law is not “succinct, clear, and explicit” in providing that Ortiz-Mondragon‘s substantial battery constituted a crime involving moral turpitude, his attorney “need[ed] [to] do no more than advise [him] that pending criminal charges may carry a risk of adverse immigration consequences.” See Padilla, 559 U.S. at 369. Ortiz-Mondragon‘s trial attorney satisfied that requirement by conveying the information contained in the plea questionnaire and waiver of rights form—namely, that Ortiz-Mondragon‘s “plea could result in deportation, the exclusion of admission to this country, or the denial of naturalization under federal law.” Counsel‘s advice was correct, not deficient, and was consistent with
By the Court.—The decision of the court of appeals is affirmed.
71. ANN WALSH BRADLEY, J. (dissenting). This case represents yet another example of the intersection of state criminal law with the federal immigration law. It likewise offers another example of why the mantra of the bar and bench alike should be: read the relevant statute.
72. Had the attorney merely read the governing statute, he would have discovered that the crime to which Ortiz-Mondragon pled made him deportable. Aside from the subsection on crimes involving moral turpitude (CIMTs), the statute has another subsection clearly rendering noncitizens deportable for a conviction of domestic violence.
73. Because the consequence of a conviction is clear, the duty to give accurate immigration advice is likewise clear. Padilla v. Kentucky, 559 U.S. 356, 368 (2010) (“when the deportation consequence is truly clear, ... the duty to give correct advice is equally clear.“).
74. Nevertheless, the majority essentially ignores the relevant domestic abuse subsection of the statute and the attorney‘s apparent failure to read it, and engages in a lengthy discussion of CIMTs. Rather than focusing on whether the specific crime at issue qualifies as a CIMT under the controlling federal precedent, it focuses instead on whether there is a clear definition of “crime of moral turpitude”
75. Because the circuit court denied Ortiz-Mondragon‘s motion for postconviction relief without a hearing, it is hard to know the extent of the information the attorney provided and his basis for it. The record is wholly insufficient to determine the merits of the claim. The majority, however, purports to perform this task, concluding that Ortiz-Mondragon‘s claim must fail.
76. Padilla‘s requirement that attorneys inform their clients of the immigration consequences of entering a plea was not a mere suggestion. It set the standard for attorney performance under the Sixth Amendment. Unlike the majority, I conclude that Ortiz-Mondragon‘s claim of a Padilla violation cannot be so quickly brushed aside.
77. Because the consequence of deportation is clear under the subsection on domestic abuse (
I
78. The majority ignores that had defense counsel done the bare minimum amount of research and merely read the governing statute, he would have discovered that the crime to which Ortiz-Mondragon pled made him deportable. Aside from the subsection on CIMTs, the statute has another subsection clearly rendering noncitizens deportable for a conviction of domestic violence:
79. In language that is clear and succinct, that subsection provides that any noncitizen who at any time after admission is convicted of a crime of domestic violence is deportable:
Any alien who at any time after admission is convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is deportable.
80. The subsection further details what qualifies as a crime of domestic violence:
For purposes of this clause, the term “crime of domestic violence” means any crime of violence (as defined in section 16 of Title 18) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual‘s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local government.
81. If there is any doubt about the plain meaning of the subsection of the statute, it is put to rest by a recent decision by the United States Supreme Court. In Mellouli v. Lynch, 135 S. Ct. 1980, 1990 n.11 (June 1, 2015), the Court described the subsection as “speci-f[ying] the conduct that subjects an alien to removal.” See also id. at 1992 (Thomas, J. dissenting) (describing
82. This is in accord with prior circuit court decisions. See, e.g., Carrillo v. Holder, 781 F.3d 1155 (9th Cir. 2015) (noncitizen rendered removable due to his domestic violence conviction); Florez v. Holder, 779 F.3d 207, 209 (2d Cir. 2015) (”
83. Like a conviction for a CIMT, a domestic violence conviction renders noncitizens ineligible for relief under
84. Fundamental to the practice of law is being familiar with the relevant statutes. Failure to do so constitutes a quintessential example of deficient performance. See Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014) (“[a]n attorney‘s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.“).
85. Reading the governing statutes is required by the prevailing professional norms which, under Strickland, set the
86. Likewise, Standard 14–3.2 of the ABA Standards for Criminal Justice, Pleas of Guilty (3d ed. 1999), requires attorneys to investigate the law before advising defendants about pleas. The commentary advises that because the immigration consequence of a guilty plea may well be a client‘s greatest priority,“counsel should be familiar with the basic immigration consequences that flow from different types of guilty pleas, and should keep this in mind in investigating law and fact and advising the client.” Id. at 127.
87. Here, had defense counsel read the governing statute he would have been able to provide Ortiz-Mondragon with more than a general warning.4 Nevertheless, the majority attempts to circumvent this problem by simply dismissing the domestic abuse subsection in a footnote. It ignores not only the clear language of the subsection but also Padilla‘s clear directive: attorneys must “provide [their] client[s] with available advice....” Padilla, 559 U.S. at 371.
II
88. Rather than discussing the plain language of the domestic abuse subsection or focusing on whether the crime at issue renders Ortiz-Mondragon deportable, the majority takes a different approach. It discusses the lack of definition of CIMTs in the immigration statute, that other courts have deemed the term “crime involving moral turpitude” ambiguous, and that different circuits have different tests for
determining whether a crime is a CIMT. Majority op., ¶¶ 37, 39, 41. Accordingly, the majority concludes that the immigration consequences were unclear and that defense counsel‘s performance was not deficient because he needed to do no more than tell Ortiz-Mondragon that a conviction may have negative immigration consequences.
89. The majority ignores, however, that this case did not require defense counsel to determine the definition of a CIMT. Rather he needed to determine only if the crime Ortiz-Mondragon faced, substantial battery with a domestic abuse enhancer, qualified as a CIMT. Further, defense counsel was not required to determine what other federal circuits would have done. Rather, he should have looked at the law in the Seventh Circuit, which governs Ortiz-Mondragon‘s case.
90. Review of removal proceedings conducted in this federal judicial circuit is
91. Immigration removal proceedings for Wisconsin residents, such as Ortiz-Mondragon, are conducted in Chicago. See Executive Office for Immigration Review, Department of Justice, “EOIR Immigration Court Listing” (2015), available at www.justice.gov/eoir/immigration-court-administrative-control-list#Chicago.5 Thus, upon completion of his sentence Ortiz-Mondragon‘s removal proceeding would have occurred in Chicago and Seventh Circuit Court of Appeals precedent would govern.
92. A basic search of Seventh Circuit cases provides a clear answer to whether domestic battery qualifies as a CIMT. The answer is “yes.” In Coyomani-Cielo v. Holder, the Seventh Circuit plainly stated that “[defendant] was convicted of domestic battery, which qualifies as a CIMT....” 758 F.3d 908, 910 (7th Cir. 2014).
93. The majority attempts to explain away this clear statement by inaccurately asserting that it was presented as a concession by the defendant. Majority op., ¶ 68 n.20. It was neither a concession nor even a debatable point. Rather, the court made this statement as a clear statement of fact in its description of the background of the case.
94. Admittedly, Coyomani-Cielo considered a conviction under Illinois law. Accordingly, to determine whether Ortiz-Mondragon‘s conviction would be a CIMT, one must take the additional step of comparing the Illinois statute at issue in that case,
95. Under the Illinois statute, domestic battery is committed by: “knowingly without legal justification by any means: (1) Caus[ing] bodily harm to any family or household member; (2) Mak[ing] physical contact of an insulting or provoking nature with any family or household member.”6 Under the Wisconsin statute,Ortiz-Mondragon was convicted of “caus[ing] substantial bodily harm to another by an act done with intent to cause bodily harm to that person or another.”
96. The statutes reveal that a Wisconsin conviction for substantial battery with a domestic abuse enhancer necessarily would qualify as domestic battery under Illinois law. Thus, the crime for which Ortiz-Mondragon was convicted should likewise be deemed a CIMT.
98. Ultimately, the Seventh Circuit determined that battery of a police officer did not necessarily constitute a CIMT because the Illinois statute at issue did not include bodily harm as an element. Garcia-Meza, 516 F.3d at 538. Garcia-Meza is instructive. Its analysis reveals that a crime qualifies as a CIMT when it includes as an element bodily harm to a person who society recognizes as deserving of special protection, such as a domestic partner. See also Castellanos v. Holder, 652 F.3d 762, 764 (7th Cir. 2011) (defendant conceded his domestic battery conviction constituted a CIMT); Benaouicha v. Holder, 600 F.3d 795, 797 (7th Cir. 2010) (noting defendant‘s concession that his conviction for the battery of his wife constituted a conviction for a CIMT).7 Ortiz-Mondragon‘s conviction for substantial battery with a domestic abuse enhancer meets these criteria.
99. Even if defense counsel had been unable to find and analyze the governing precedent, he could have determined that substantial battery with a domestic abuse enhancer qualified as a CIMT by consulting legal practice guides. Padilla instructs attorneys to consult guidebooks to educate themselves about the relevant immigration law: “we expected that counsel who were unaware of the discretionary relief measures would ‘follo[w] the advice of numerous practice guides.’ ” 559 U.S. at 368.
100. Practice guides indicate that substantial battery with a domestic abuse enhancer qualifies as a CIMT. For example, Maria Baldini-Porterman‘s comprehensive guide on immigration consequences conveys the same information as Garcia-Meza:
Where the elements of a domestic battery offense do not require either actual
infliction of serious harm or specific intent and physical injury to the victim, the offense is not categorically a crime involving moral turpitude. The willful infliction of corporal injury on a spouse, cohabitant, or parent of the offender‘s child in violation of California Penal Code § 273.5(a) has been found to be a crime involving moral turpitude.
Maria Baldini-Porterman, Defending Non-Citizens in Illinois, Indiana and Wisconsin (Heartland Alliance‘s National Immigrant Justice Center 2009).
101. Likewise, another practice guide states: “moral turpitude has been found where the assault and battery offenses are defined by reference to the infliction of bodily harm on someone whom society views as deserving of special protection (such as a child or spouse).” Austin T. Fragomen, Jr. and Steven C.Bell, Immigration Fundamentals: A Guide to Law and Practice, § 7:2.2 at 7–32 (4th ed. 2014).
102. The “Immigration Consequences Crimes Summary Checklist,” published by the Immigrant Defense Project (2010), provides even clearer guidance. Its list of CIMTs includes “[c]rimes in which bodily harm is caused or threatened by an intentional act....” Ortiz-Mondragon‘s conviction for substantial battery with a domestic abuse enhancer unquestionably meets these requirements. As noted above, substantial battery is defined as “caus[ing] substantial bodily harm to another by an act done with intent to cause bodily harm to that person or another.”
103. By focusing on the difficulty of defining “crimes of moral turpitude” and the different approaches the circuit courts take in determining whether a crime is a CIMT, the majority hides the fact that a conviction for substantial battery with a domestic abuse enhancer qualifies as a CIMT in the Seventh Circuit. Whether by reading the plain language of the domestic abuse subsection of the statute or by following clear Seventh Circuit precedent, defense counsel should have discovered the immigration consequences of Ortiz-Mondragon‘s plea. It was clear the plea would render him deportable. Thus, “the duty to give correct advice is equally clear.” Padilla, 559 U.S. at 368. Defense counsel was obligated to provide the advice that was available. Id., 371.
104. As explained above, the United States Supreme Court has instructed, “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Strickland, 466 U.S. at 688. In criminal representation, this “entails certain basic duties,” including the “duty to makereasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 688, 691. “[A]n attorney‘s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.” Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014).
105. The majority conducts no inquiry into whether defense counsel‘s research was reasonable under professional norms, or whether defense counsel was ignorant on a fundamental point of law (i.e. the immigration consequences of a plea), nor could it. Without a Machner hearing the record is silent in this respect. Just as the record fails to show what warnings defense counsel provided, it also fails to show that he did adequate research into the immigration issue.
III
106. In contrast to the majority, I would remand this case for a Machner
107. Ortiz-Mondragon‘s motion is quite detailed and alleges sufficient facts which, if true, show that he is entitled to relief. It details that his plea rendered him ineligible for cancellation of his removal:
Mr. Ortiz-Mondragon pleaded no contest to substantial battery, domestic abuse, contrary to
Wis. Stat. § 940.19(2) . This is a crime involving moral turpitude.
The maximum sentence for this offense is 3.5 years of imprisonment. Because the maximum period of confinement exceeds one year, Mr. Ortiz-Mondragon‘s conviction rendered him ineligible for cancellation of removal.
It also explains that the plea prevents Ortiz-Mondragon from returning to the United States:
[B]ecause of his convictions, Mr. Ortiz-Mondragon is permanently excluded from legally re-entering the United States. An individual applying for admission to the United States cannot have been convicted for a crime involving moral turpitude.
INA § 212(a)(2)(A)(i)(I) . The only exception is when the conviction involves a crime for which the maximum punishment is less than one year, and the actual sentence of the court does not exceed six months.
108. Further, the motion alleges that defense counsel was deficient for failing to advise him of these consequences: “[Ortiz-Mondragon] was not properly advised of the adverse immigration consequences of his plea.” It explains what his attorney should have told him: “counsel‘s advice to Mr. Ortiz-Mondragon should have been that accepting a plea agreement in which he would plead guilty or no contest to substantial battery-domestic abuse would result in automatic removal and permanent exclusion from the United States.” It then claims that his attorney failed to provide this advice: “trial counsel failed to advise him of adverse immigration consequences of his plea, specifically that the convictions mandated removal and resulted in permanent exclusion from the country once removed.”
109. Finally, the motion alleges that this deficient performance prejudiced Ortiz-Mondragon: “Mr. Ortiz-Mondragon would have gone to trial instead ofpleading no contest had he known his convictions made him automatically deportable and permanently excluded.” It explains that “[Ortiz-Mondragon] has already left the country and is now in Mexico. Due to his conviction, he was unable to apply for cancellation of his removal and he is now permanently excluded from re-entering the country.” “[H]ad Mr. Ortiz-Mondragon known and understood the consequences of a conviction for substantial battery, he would have attempted to negotiate a plea agreement that avoided the automatic and permanent consequences he now faces.”
110. These facts, if true, show that Ortiz-Mondragon‘s attorney was deficient because he did not meet the Padilla requirements. They also sufficiently allege that the deficiency prejudiced Ortiz-Mondragon. Thus, if true, the allegations establish a violation of Ortiz-Mondragon‘s Sixth Amendment rights, entitling him to relief.
111. Nothing in the record conclusively rebuts Ortiz-Mondragon‘s claim. It does not indicate what, if anything, defense counsel told Ortiz-Mondragon about the
112. None of the scenarios that would preclude a Machner hearing are present. Roberson, 292 Wis. 2d 280, ¶ 43 (Machner hearing not required if the motion “presents only conclusory allegations,” “fails to allege sufficient facts to raise a question of fact,” or “if the record conclusively demonstrates that the defendant is not entitled to relief.“). Accordingly, a Machner hearing is required to determine the merits of Ortiz-Mondragon‘s claim.
IV
113. Under Padilla, attorneys representing noncitizens must research the relevant immigration consequences of a conviction and provide that information to their clients. These requirements are important protections to noncitizens.
114. Each of the majority‘s errors removes some of that protection. By ignoring statutory grounds rendering Ortiz-Mondragon deportable, the majority implicitly approves of attorneys not reading the governing immigration statutes, leaving the door open for uninformed, inaccurate advice. By determining that the immigration consequences of Ortiz-Mondragon‘s plea are unclear because the definition of CIMT is unclear, the majority reduces the number of situations in which attorneys must provide available immigration advice.
115. In contrast to the majority, I believe that Padilla‘s requirements have teeth. Had defense counsel researched the immigration consequences of Ortiz-Mondragon‘s plea, he would have discovered that it rendered Ortiz-Mondragon deportable. Under Padilla, that means that defense counsel was required to convey that information to his client. Ortiz-Mondragon should have the opportunity to prove that such advice was not given and that he was prejudiced as a result. Therefore a remand is required and a Machner hearing is necessary.
116. For the reasons set forth above, I respectfully dissent.
117. I am authorized to state that Justice SHIRLEY S. ABRAHAMSON joins this dissent.
Notes
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
Before the court accepts a plea of guilty or no contest, it shall . . [a]ddress the defendant personally and advise the defendant as follows: “If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law.”
spouses, former spouses, parents, children, stepchildren, and other persons related by blood or by present or prior marriage, persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or allegedly share a blood relationship through a child, persons who have or have had a dating or engagement relationship, persons with disabilities and their personal assistants, and caregivers as defined in Section 12–4.4a of this Code.