STATE of Wisconsin, Plaintiff-Respondent, v. Olayinka Kazeem LAGUNDOYE, Defendant-Appellant-Petitioner.
Nos. 02-2137 through 02-2139.
Supreme Court of Wisconsin
Oral argument October 13, 2003.—Decided January 30, 2004.
2004 WI 4 | 674 N.W.2d 526
For the plaintiff-respondent the cause was argued by James M. Freimuth, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.
I. ISSUE
¶ 2. The issue presented on appeal is whether the rule we announced in State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, can be applied retroactively to a defendant who exhausted his direct appeal rights before Douangmala was decided, such that he is entitled to withdraw his pleas in criminal cases where the circuit court failed to advise him of the possible deportation consequences of his plea under
II. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶ 3. On February 6, 1997, Lagundoye pled guilty to theft2 and burglary3 charges as part of a plea agreement. He was sentenced on these two charges, and judgment was rendered on March 27, 1997. On April 24, 1998, Lagundoye, in a separate criminal case,4 pled guilty to two counts of forgery pursuant to a plea agreement. He was thereafter sentenced on June 30, 1998, and judgment of conviction was entered on July 1, 1998.
¶ 4. It is undisputed that the circuit court in all three cases failed to comply with the mandates of
Before the court accepts a plea of guilty or no contest, it shall do all of the following:
....
(c) Address 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.”
....
Section 971.08(2) provides the remedy if the circuit court fails to comply with the above mandate:
If a court fails to advise the defendant as required by sub. (1)(c) and the defendant later shows that the plea is likely to result in the defendant‘s deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant‘s motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.
¶ 5. At the time Lagundoye entered his pleas, the law governing the application of
¶ 6. Lagundoye‘s application for status as a lawful permanent resident was denied on December 21, 2001. On January 3, 2002, the United States Department of Immigration and Naturalization Service notified Lagundoye that it had commenced deportation proceedings against him arising out of his criminal convictions. Thereafter, on June 19, 2002, this court issued its opinion in Douangmala, 253 Wis. 2d 173. In Douangmala, we concluded:
Wis. Stat. § 971.08(1)(c) sets forth the language a circuit court must use to inform a defendant of the deportation consequences of entering a plea of guilty or no contest. ... If a circuit court fails to give the statutorily mandated advice and if a defendant moves the court and demonstrates that the plea is likely to result in the defendant‘s deportation, then§ 971.08(2) requires the circuit court to vacate the conviction and
to permit the defendant to withdraw the guilty or no-contest plea.
¶ 7. On July 22, 2002, Lagundoye moved to reopen and vacate the aforementioned judgments of convictions and withdraw his respective pleas under
¶ 8. The circuit court denied Lagundoye‘s motion for post-conviction relief with respect to the two convictions in which he had completely served his sentence because it found it lacked jurisdiction to consider a
¶ 9. The court of appeals did not address the jurisdictional issue relied upon by the circuit court with respect to two of Lagundoye‘s convictions; instead, it affirmed the circuit court‘s conclusion that the rule in Douangmala does not apply retroactively to defendants who exhausted their direct appeal rights before Douangmala was decided. Lagundoye, 260 Wis. 2d 805, ¶ 3 & n.2. The court of appeals then concluded that all three of Lagundoye‘s cases were governed by the pre-Douangmala harmless-error analysis, and Lagundoye was not entitled to withdraw his pleas because he did not contend that he did not know of the deportation consequences of his pleas. Id., ¶¶ 10-11.
¶ 10. On August 5, 2002, the United States Department of Justice Immigration Court entered an order deporting Lagundoye to Nigeria. Counsel has informed the court that Lagundoye was in fact deported to Nigeria subsequent to the court of appeals’ decision.10
¶ 11. There are three lines of cases that govern whether a rule should be applied retroactively to criminal cases on appeal. These cases establish that whether a rule should be applied retroactively is dependent upon two threshold determinations: 1) whether the rule is a new rule of substance or new rule of criminal procedure and 2) whether the case which seeks to benefit from retroactive application is on direct review or is final, such that it is before the court on collateral review.
¶ 12. First, a new rule of substantive criminal law is presumptively applied retroactively to all cases, whether on direct appeal or on collateral review. See Bousley v. United States, 523 U.S. 614, 620-21 (1998); State v. Howard, 211 Wis. 2d 269, 283-85, 564 N.W.2d 753 (1997), overruled on other grounds by State v. Gordon, 2003 WI 69, ¶ 40, 262 Wis. 2d 380, 663 N.W.2d
¶ 13. Third, a new rule of criminal procedure generally cannot be applied retroactively to cases that were final before the rule‘s issuance under the federal nonretroactivity doctrine announced by the Supreme Court plurality opinion in Teague v. Lane, 489 U.S. 288 (1989), and later adopted by the majority of the Court in Graham v. Collins, 506 U.S. 461, 467 (1993). Under Teague, a new rule of criminal procedure is not applied retroactively to cases on collateral review unless it falls under either of two well-delineated exceptions. Teague, 489 U.S. at 307. First, a new rule of criminal procedure should be applied retroactively to cases on collateral review if it “places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’ ” Id. (citation omitted). Second, a new rule of criminal procedure should be applied retroactively to cases on collateral review if it encompasses procedures that ” ‘are implicit in the concept of ordered liberty.’ ” Id. (citation omitted).
¶ 14. While Teague, read narrowly, applies only to federal habeas corpus proceedings, Wisconsin has adopted the Teague framework in all cases involving new rules of constitutional criminal procedure on collateral review pursuant to
¶ 15. Both parties cite to Schmelzer for the proposition that Wisconsin has carved out a third exception to the general rule of nonretroactivity in Teague. In fact, Howard states that this court in Schmelzer “articulated a third exception, to include claims that can only be raised on collateral review.” Howard, 211 Wis. 2d at 285. However, this is a misreading of Schmelzer.
¶ 16. Teague was somewhat unique in that it discussed the retroactive application of a new rule while deciding whether to adopt the rule. Teague, 489 U.S. at 315. After discussing the aforementioned general principles of retroactivity, Teague went on to hold “habeas
¶ 17. It is this later holding that the Wisconsin Supreme Court in Schmelzer decided not to follow. In discussing the second holding of Teague, this court stated:
[T]he Teague plurality also holds that “habeas corpus cannot be used as a vehicle to create new constitutional rules of criminal procedure unless those rules would be applied retroactively to all defendants on collateral review through one of the two exceptions we have articulated.” ... The rule we here announce, based on a statutory right to counsel and not a constitutional right, does not rise to the level of giving protection to a “primary activity” or invoking an “absolute prerequisite to fundamental fairness,” ... so neither exception allowing retroactivity is present. However, ... a claim of ineffective assistance of appellate counsel may only be heard through a petition for a writ of habeas corpus. Applying Teague strictly would mean that this court could never announce a new rule of law relating to this type of claim unless the new rule fell into one of two exceptions, a result plainly absurd. We therefore conclude that where, as in the present situation, a type of claim may only be made through a form of collateral relief, the creation of new rules of law is not forbidden by the Teague rule as adopted by this court for use in Wisconsin.
Schmelzer, 201 Wis. 2d at 257-58 (final emphasis added) (citations omitted).
¶ 20. Applying these principles to the case at bar, it is undisputed that all of Lagundoye‘s underlying criminal cases were final when Douangmala was decided and that his appeal is a collateral challenge to these convictions. A case is final if the prosecution is no longer pending, a judgment or conviction has been entered, the right to a state court appeal from a final judgment has been exhausted, and time for certiorari review in the United States Supreme Court has expired. See Horton, 195 Wis. 2d at 284 n.2; Koch, 175 Wis. 2d at 694 n.3.13
¶ 23. The dissent further mischaracterizes Bousley by arguing the Court‘s decision was based on the fact that the rule involved was not new. Dissent, ¶¶ 58–59. The Bousley Court did not follow Teague because of the important “distinction between substance and procedure,” noting that
decisions of this Court holding that a substantive federal criminal statute does not reach certain conduct, like decisions placing conduct ” ‘beyond the power of the criminal law-making authority to proscribe’ “[i.e. decisions announcing substantive rules], necessarily carry a significant risk that a defendant stands convicted of “an act that the law does not make criminal.”
Bousley, 523 U.S. at 620 (citations omitted). As the above language from Bousley unambiguously indicates, the Court‘s decision to not follow Teague resulted from
the fact that the rule announced in Bailey was a substantive rule such that Bousley may have been “misinformed as to the true nature of the charges against him.” Id. at 619.
¶ 24. The dissent further argues that the rule in Douangmala was substantive law because Lagundoye‘s convictions would be vacated under Douangmala. Dissent, ¶ 87. However, the test for determining whether a new rule constitutes substantive law is not whether the defendant‘s convictions would be reversed under the new rule or whether the new rule has a “substantive impact” on a defendant. Dissent, ¶ 84. Rather, the test for determining whether a new rule is substantive or procedural is whether the new rule affected the legality of the underlying conduct for which he was convicted. Bousley, 523 U.S. at 620; See also State v. Kurzawa, 180 Wis. 2d 502, 512, 509 N.W.2d 712 (1994) (noting that when a new rule “criminalized conduct that was innocent when committed, it could not be retroactively applied” because of ex post facto concerns); E.B., 111 Wis. 2d at 189 (defining “substantive law“).
¶ 25. The rule we announced in Douangmala merely repudiated the harmless-error analysis previously used to determine whether a defendant could withdraw his plea if a circuit court violated the dictates of
¶ 26. Likewise, it is clear that under Wisconsin‘s formulation of the Teague doctrine, the rule we announced in Douangmala was “new.” ” ‘[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant‘s conviction became final.’ ” State v. Lo, 2003 WI 107, ¶ 62 n.1, 264 Wis. 2d 1, 665 N.W.2d 756 (quoting Teague, 489 U.S. at 301) (emphasis in original).16 The proper inquiry is not whether a case implicated an “old notion.” Dissent, ¶ 70. Rather,
“a case announces a new rule if its outcome was susceptible to debate among reasonable minds, or if a contrary result would not have been an illogical or even a grudging application of prior precedent.” In contrast, a case extends an old rule only if its holding is “compelled or dictated by existing precedent.”
Horton, 195 Wis. 2d at 291 (citations omitted).17 There
¶ 27. The result in Douangmala was not dictated by precedent; it overruled a line of precedent applying the harmless-error analysis to violations of
¶ 28. The fact that our rule in Douangmala was based on the plain language of
¶ 30. To pretend that Chavez, Issa, Lopez, and Garcia never existed or applied to any case simply to reach a desired result is disingenuous to the litigants, attorneys, and circuit courts that were bound by those decisions. If the dissent‘s approach were the law in Wisconsin, then every time this court reinterpreted a procedural statute in the criminal code, every conviction affected by that statute that was finalized before the new interpretation could be collaterally attacked. This result would run counter to Lo and Schmelzer. The untenable result of the dissent‘s approach, which flies in the face of the need for finality in judgments, would be
¶ 31. Given that the rule in Douangmala was a new rule of criminal procedure20 and that Lagundoye‘s underlying criminal convictions were final before Douangmala was decided, Lagundoye‘s case falls under the Teague retroactivity analysis and the Griffith rule of retroactivity, applicable only to cases on direct review, does not apply.21 As discussed supra, Wisconsin follows the general rule in Teague that a new rule of criminal
¶ 32. The first exception to the Teague nonretroactivity rule applies if the new rule “places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’ ” Teague, 489 U.S. at 307 (quoting Mackey v. United States, 401 U.S. 667, 692 (1971)). This first exception applies to conduct that “is classically substantive.” Howard, 211 Wis. 2d at 283. Douangmala did not decriminalize any conduct or place any conduct beyond the power of the legislature to proscribe. Likewise, the Douangmala rule, modifying the test for plea withdrawal under
“Typically, it should be the case that any conviction free from federal constitutional error at the time it became final, will be found, upon reflection, to have been fundamentally fair and conducted under those procedures essential to the substance of a full hearing. However, in some situations it might be that time and growth in social capacity, as well as judicial perceptions of what we can rightly demand of the adjudicatory process, will properly alter our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction. For example, such, in my view, is the case with the right to counsel at trial now held a necessary condition precedent to any conviction for a serious crime.”
Id. at 311-12 (quoting Mackey, 401 U.S. at 693-94).
¶ 34. The Teague court concluded that the second exception is limited to “those new procedures without which the likelihood of an accurate conviction is seriously diminished.” Id. at 313. Further, the plurality in Teague stated, “[b]ecause we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge.” Id. at 313. Notably, Teague ruled that the requirement that a jury venire be composed of a fair cross section of the community would not fall within the second exception because “the absence of a
¶ 35. Wisconsin has consistently followed the Teague formulation of the second exception, limiting its application to new constitutional rules that implicate the fairness and accuracy of the fact-finding process. For example, in State v. Denny, 163 Wis. 2d 352, 357, 471 N.W.2d 606 (Ct. App. 1991), this court held that a new rule prohibiting the introduction of a non-testifying co-defendant‘s confession at a joint trial where the co-defendant‘s statement would not be directly admissible against the defendant qualified for retroactive application under the second Teague exception. The court reasoned that because “[t]he confrontation clause of the
¶ 36. In contrast, this court has held that a new statutorily based rule, providing a criminal defendant with the right to counsel on petition for habeas corpus, would not be applied retroactively, as it did not invoke “an ‘absolute prerequisite to fundamental fairness[.]’ ” Schmelzer, 201 Wis. 2d at 257-58 (citing Teague, 489 U.S. at 314). Also, this court has held that a new rule clarifying the statutory elements for imperfect self-defense did not merit retroactive application, as it did not constitute “a watershed rule of criminal procedure, implicating fundamental fairness and the concept of ordered liberty.” Lo, 264 Wis. 2d 1, ¶ 71.
¶ 37. We do not think the Douangmala rule falls within the small core of procedural rules meriting retroactive application under the second exception. The rule in Douangmala, providing for an automatic plea withdrawal if a defendant meets the requirements of
¶ 38. Further, the Douangmala rule does not implicate a constitutional right that is included in the foundation of bedrock procedural elements considered necessary for a fair trial. The holding in Douangmala was based solely upon the legislative history of
¶ 39. Contrary to the dissent‘s assertion, the fact that the result of not applying a new rule retroactively may result in unpleasant consequences to a particular litigant, dissent, ¶¶ 97, 104-109, does not render the Douangmala rule part of the small core of watershed rules essential in the concept of ordered liberty. As noted supra, this second Teague exception is limited to new procedural rules that affect the likelihood of an accurate conviction. Thus, “unless a new rule of criminal procedure is of such a nature that ‘without [it] the likelihood of an accurate conviction is seriously diminished,’ there is no reason to apply the rule retroactively.” Bousley, 523 U.S. at 620 (quoting Teague, 489 U.S. at 313).
¶ 40. It is important to emphasize that under the previous harmless-error analysis of Chavez and its progeny, the failure of a circuit court to inform a defendant under
¶ 41. The rule in Douangmala did not implicate a constitutional right, the accuracy or fundamental fairness of a trial, or change our understanding of the bedrock procedural elements inherent in the concept of ordered liberty. Thus, the new rule announced in Douangmala does not fall within the second Teague exception. Douangmala does not fit within either of the two Teague exceptions to nonretroactivity; hence, it cannot be applied retroactively to cases that were not on direct review when Douangmala was decided. Therefore, we hold that Douangmala does not apply retroactively to cases, such as Lagundoye‘s, that were final before Douangmala was decided and are now on collateral review.23 In the end, the dissent‘s smokescreen of pejoratives and results-oriented rationale cannot obscure the reality that our decision is perfectly consistent with those Wisconsin authorities that have interpreted whether a rule is “old” or “new” and whether a rule is “procedural” or “substantive” for the purposes of retroactivity.
¶ 43. As the court of appeals noted, Lagundoye does not contend that he was unaware of the deportation consequences of his guilty pleas when he entered into them. Lagundoye, 260 Wis. 2d 805, ¶ 11. Further, it is clear from the record that Lagundoye did know of the possible deportation consequences of his guilty pleas. Lagundoye‘s September 1996 conviction for theft, which has not been appealed to this court, Case No. 96-CM-610289, was chronologically his first conviction. As noted supra, Lagundoye initially sought to withdraw his plea in this case as well, but later dropped this appeal, after it was determined that the circuit court did comply with
IV. SUMMARY
¶ 44. We conclude the automatic vacatur rule announced in Douangmala is a new rule of criminal
By the Court.—The decision of the court of appeals is affirmed.
¶ 45. DIANE S. SYKES, J., did not participate.
¶ 46. SHIRLEY S. ABRAHAMSON, C.J. (dissenting). The majority in this case is in the uniquely unenviable position of rendering a decision that is wrong on the law as well as being fundamentally unfair and unjust. Because neither the law nor fundamental fairness and justice can support the majority opinion‘s conclusions, I dissent.
¶ 47. The majority opinion frames the legal issue as follows: whether the rule announced in State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, can be applied retroactively to a defendant whose opportunity for a direct appeal expired before Douangmala was decided.1 This court did not decide in Douangmala whether its decision was to be retroac
¶ 48. Although this court is not required to follow federal rules regarding the retroactive application of changes in the criminal law, this court has, in the past, relied on federal interpretations in this area and has explicitly adopted three United States Supreme Court cases elaborating upon various aspects of the doctrine of retroactivity: Bousley v. United States, 523 U.S. 614 (1998), Teague v. Lane, 489 U.S. 288 (1989), and Griffith v. United States, 479 U.S. 314 (1987).
¶ 49. Following the federal rules of retroactivity is not easy. One commentator has noted that “the Court‘s decisions in this area have spawned a veritable cottage industry of academic attempts to impose some order on the chaos.”2 Another concluded that the Court‘s jurisprudence in this area seems to be the product of a split personality.3
¶ 50. Retroactivity under these cases turns on whether a court announces a new or an old rule, whether the new rule is one of substantive criminal law or criminal procedural law, and whether the defendant‘s challenge is made on direct appeal (or while in the direct appeal pipeline) or on collateral review.4 New rules of substantive criminal law are presumptively
¶ 51. The lines between a “new rule” and an “old rule,”7 and between a substantive and a procedural change in the law,8 are blurry and often difficult to perceive. But blurriness is no excuse for myopia. The majority opinion‘s failure to come to grips with the difficult, nuanced issues presented by this case is vexing, and I cannot agree with its short-sighted conclusions.
¶ 52. I agree with the majority opinion that this case is governed by the United States Supreme Court‘s decisions in Teague and Bousley. I conclude, however, that Lagundoye‘s conviction must be vacated for the following reasons:
¶ 53. First, the rule announced in Douangmala is not a new rule under the Bousley decision.
¶ 54. Second, Douangmala did not announce, under Teague, a new rule even though it overruled prior court of appeals decisions.
¶ 55. Third, Douangmala announced, under Teague, a substantive rule, not a procedural rule.
¶ 56. Fourth, the majority determines the effective date of a statute instead of abiding by the legislative determination of the effective date of
¶ 57. Fifth, even if Douangmala is viewed as having announced a new procedural rule, this case falls under the Teague exception that allows retroactive application of a ” ‘small core’ of rules required in the concept of ordered liberty.”9 This case implicates significant concerns of liberty and fairness.
I
¶ 58. First, the rule announced in Douangmala is not a new rule under the Bousley decision.
¶ 59. This case is very similar to Bousley. Both Bousley and the present case involve whether a plea was knowingly and intelligently made. The Court concluded in Bousley that the requirement that a plea be knowing and intelligent is an old rule and therefore even a new rule governing what constitutes a knowing and intelligent plea is applied retroactively. Bousley governs this case.
¶ 60. In Bousley, the petitioner pled guilty to the charge of “knowingly and intentionally us[ing] firearms during and in relation to a drug trafficking crime.”10 The petitioner‘s guilty plea was accepted, and he was
¶ 61. After the appeal was final, the petitioner sought a writ of habeas corpus, “challenging the factual basis for his guilty plea on the ground that neither the ‘evidence’ nor the ‘plea allocution’ showed a ‘connection between the firearms in the bedroom of the house, and the garage, where the drug trafficking occurred.’ ”11 The district court dismissed the petitioner‘s habeas petition, and the petitioner appealed.
¶ 62. While the petitioner‘s appeal was pending, the United States Supreme Court decided Bailey v. United States, 516 U.S. 137 (1995), which held that “active employment of [a] firearm” required a use such as “brandishing, displaying, bartering, striking with,... [or] firing or attempting to fire the weapon.”12
¶ 63. The Eighth Circuit affirmed the district court‘s dismissal of the habeas petition on the ground that the petitioner had waived any challenges to his guilty plea or conviction by failing to raise these challenges in his direct appeal. The United States Supreme Court granted review to resolve a circuit split over the “permissibility of post-Bailey collateral attacks on convictions under the use of firearms in drug trafficking statute where the conviction was obtained pursuant to a guilty plea.”13
¶ 64. At the United States Supreme Court, the petitioner contended that “neither he, nor his counsel, nor the court correctly understood the essential elements of the crime with which he was charged.”14
¶ 65. The United States Supreme Court ruled that the underlying constitutional claim Bousley made (although based on the new Bailey case) was that the petitioner‘s guilty plea was not “knowing and intelligent.”16 The Court concluded that “nothing was new about this principle.”17
¶ 66. Bousley emphasized that the critically important factor was not the change in the substantive law made in Bailey, but rather how the change in the substantive law affected the knowing and intelligent entry of a guilty plea.
¶ 67. For entry of a guilty plea to be knowing and intelligent, a defendant must “understand[] the nature of the charge and the consequences of his plea.”18 The reason for this requirement is that a guilty plea “cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.”19 In Bousley, the Court concluded that the petitioner may collaterally attack the entry of a guilty plea without running afoul of Teague.20
¶ 69. In this case, unlike in Bousley, waiver is not an issue. The Wisconsin legislature has conclusively determined that the failure to advise an accused of potential deportation justifies vacating the conviction. The statute “does not limit the ability to withdraw a plea of guilty or no contest on any other grounds” than those stated in the statute.21 Lagundoye has met all the statutory conditions. The Douangmala court concluded that the Wisconsin legislature intended that if the statutory conditions are met (as they are in the present case), the circuit court shall vacate the judgment.22 The legislature has, in effect, declared that when an accused enters a guilty plea without having received the admo
¶ 70. For these reasons, I conclude that Douangmala involves the old notion that a guilty plea must be knowingly and intelligently made. The legislature has set forth a special rule that if an admonition about deportation is not given, the guilty plea is not knowingly and intelligently made and the conviction must be vacated. Such a decision is, according to Bousley, retroactive.
II
¶ 71. Second, Douangmala did not announce a new rule even though it overruled prior court of appeals decisions. Under Teague, a federal court will not disturb a final state conviction “unless it can be said that a state court, at the time the conviction or sentence became final, would have acted objectively unreasonably by not extending the relief later sought in federal court.”23
¶ 72. A unanimous court in Douangmala concluded that the earlier court of appeals cases interpreting the statute were “objectively wrong under the
language of the statute.”24 Thus Douangmala did not announce a new rule under Teague.25
¶ 73. According to the majority opinion, “a case announces a new rule if its outcome was susceptible to debate among reasonable minds.”26 It concludes that the court of appeals’ harmless error analysis in cases prior to Douangmala was susceptible to debate among reasonable minds. Not so, said the court in Douangmala.
¶ 74. When the Douangmala court declared the court of appeals’ prior interpretations to be “objectively wrong,” it was saying that no reasonable court would conclude that the statute meant something else.
¶ 75. As this court has explained, we do not examine the reasonableness of the mind of the person or the court making the interpretation, but rather, we look
¶ 76. Douangmala was not a case in which the “outcome was susceptible to debate among reasonable minds.”29 Douangmala was not a case in which this court declared that the language of the statute supported multiple reasonable interpretations.30 All of the members of this court agreed in Douangmala that the text of the statute prescribed both the warning to be given about possible deportation and the remedy for a circuit court‘s failure to give the warning. Douangmala is a decision in which this court held that the court of appeals reached what this court viewed as an unreasonable interpretation, “a case of lower court error.”31
¶ 77. In Douangmala, we unhesitatingly concluded that “[t]he precise words of
¶ 78. Yet, the majority opinion persists in asserting that merely because the court of appeals’ decisions in State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. 1993); State v. Issa, 186 Wis. 2d 199, 519 N.W.2d 741 (Ct. App. 1994); State v. Lopez, 196 Wis. 2d 725, 539 N.W.2d 700 (Ct. App. 1995); and State v. Garcia, 2000 WI App 81, 234 Wis. 2d 304, 610 N.W.2d 180 were overruled by Douangmala does not mean that those interpretations were unreasonable.34 The only way the majority opinion can come to this conclusion is to declare that an objective reading of a statute now includes unreasonable interpretations as well as reasonable ones.
¶ 79. If this court were following federal law, as it very frequently does, and if this court were following Teague and Bousley, as it professes to do, it should conclude that Douangmala was merely an objectively correct reading of the language of an existing statute
III
¶ 80. Third, even if Douangmala announced a new rule, the rule is not procedural but substantive.
¶ 81. Douangmala is not, as the majority opinion claims, new procedural law. Rather, it is old substantive criminal law.35
¶ 82. I acknowledge that if one reads the statute superficially, it appears to be procedural.
¶ 83. Rules do not, however, “fall neatly under either the substantive or procedural doctrine category.”36 They may partake of attributes of both.
¶ 84. The statute and the Douangmala case do more than govern the procedure for taking a guilty plea. Douangmala declared that a conviction based on a guilty plea made without a circuit court‘s admonition
¶ 85.
¶ 86. Under Bousley, a court holding is “substantive” when it affects the scope and application of a substantive criminal statute.37 In Bousley the Court ruled that the Bailey decision affected the scope and application of a substantive criminal statute. So, too, does Douangmala affect the scope and application of substantive criminal statutes. Accordingly, I conclude that the rule in Douangmala is substantive and should be applied retroactively.
¶ 87. Furthermore, because
IV
¶ 88. Fourth, the majority has determined the effective date of a statute instead of abiding by the legislative determination of the effective date.
¶ 89. In the present case, in which the prior interpretation of a statute was “objectively wrong,” the majority opinion effectively ignores the legislature‘s prerogative to determine when a statute goes into effect.
¶ 90. Lagundoye‘s crimes, pleas, and convictions all occurred after the effective date of the statute.
¶ 91. The court commented in Bousley that Teague is inapplicable to criminal statutes. The court stated that “because Teague by its terms applies only to procedural rules, we think it is inapplicable to the situation in which this Court decides the meaning of a criminal statute enacted by Congress.”39
¶ 92. The Bousley Court did not further explain what it meant when it declared that Teague did not apply to criminal statutes. The Court may have meant that all criminal statutes, including criminal procedural statutes, enacted by the legislature are not subject to Teague because that doctrine only applies to court-made rules of constitutional procedure.40 Alternatively, it may have meant that Teague does not apply to substantive criminal statutes.41
¶ 93. Justice Stevens’ concurrence in Bousley
¶ 94. Justice Stevens’ concurrence in Bousley was consistent with a line of cases, both criminal and civil, that state the rule that when the United States Supreme Court interprets a statute, the decision ordinarily applies retroactively because the Court declares what the statute always meant.
¶ 95. The United States Supreme Court‘s construction of a federal statute “is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construc
¶ 96. If this court were following Teague and Bousley, as it professes to do, I suggest that it should not trump the legislature‘s authority to decide when a statute becomes effective and should conclude that Douangmala is the authoritative statement of what the statute meant since the effective date of the law set by the legislature. For these reasons, I conclude that Douangmala is retroactive.
V
¶ 97. Fifth, even if Douangmala is viewed as
¶ 98. Under the Teague exception, a new rule must seriously enhance the accuracy of the proceedings and alter our understanding of bedrock procedural elements essential to the fairness of the proceeding.46 A
¶ 99.
¶ 100. In other words, this court should be examining “whether the claimed error of law was a ‘fundamental defect which inherently results in a complete miscarriage of justice’ and whether ‘[i]t presen[s] exceptional circumstances where the need for the remedy afforded’ in a collateral proceeding” is evident.47
¶ 101. This case implicates significant concerns of liberty and fairness. Deportation may result in the loss of “all that makes life worth living.”48 The United States Supreme Court clearly and persuasively articulated the significant interests involved in deportation in Bridges v. Wixon as follows:
Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. That deportation is a penalty—at times a most serious one—cannot be doubted. Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.49
¶ 102. The legislature of this state has explicitly decided in
¶ 103. A comment in the drafting record of
¶ 104. Lagundoye came to the United States from Nigeria as a nine-year-old in 1984, about 20 years ago, with his mother, younger brother, and sister. He attended public elementary and high school in Milwaukee. He enrolled in college at the University of Wisconsin-Milwaukee. In short, Lagundoye spent most of his life in the United States. Lagundoye‘s mother, father, two sisters, and brother are all U.S. citizens.
¶ 105. Lagundoye was 21 years old when he committed the first crime for which he was convicted and was 22 or 23 years old when he committed his last crime. He was deported when he was 27 years old.
¶ 106. Lagundoye was convicted of five crimes. The crimes are classified as property crimes, not crimes against life and bodily security: two counts of misdemeanor theft (involving his employer‘s business), burglary (entering a building with intent to steal), and two counts of forgery (taking credit card slips from his employer and forging them). He was sentenced to prison on the forgery count in 1998, and, while completing his sentence, he was deported in 2002.
¶ 107. Lagundoye‘s criminal behavior was and is deplorable and inexcusable. With all the opportunities afforded him, by the age of 23 he was a criminal, five times over. He had been in the House of Corrections, on
¶ 108. The State deprived him of liberty for more than 8 years by imprisoning him but left him with the opportunity to return to his home in Milwaukee to try to make a fresh start at the end of his prison term. The federal government banished Lagundoye to Nigeria, isolated from his family, friends, and the American culture in which he grew up. The federal government deprived him of any hope or opportunity to return to his family or this country.
¶ 109. The question before us is whether Lagundoye deserves to be punished by banishment when, after his first conviction, three circuit courts failed to follow the requirements set forth in
¶ 110. The majority relies on a technicality to allow the convictions to stand. The technicality is that the defendant made his challenge to the convictions by collateral attack rather than on direct appellate review. The majority concedes that Lagundoye would prevail, and his convictions would be vacated, if his challenge were being heard on direct appellate review. Yet had Lagundoye challenged his convictions by direct appellate review, the challenges might have been viewed as frivolous because the court of appeals had already ruled on the challenge he might have made and does not have the power to overturn its own decisions.53
¶ 112. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
Notes
“A moot case ... [is] one which seeks to determine an abstract question which does not rest upon existing facts or rights, or which seeks a judgment in a pretended controversy when in reality there is none, or one which seeks a decision in advance about a right before it has been asserted or contested, or a judgment upon somematter which when rendered for any cause cannot have any practical legal effect upon the existing controversy.”
State ex rel. La Crosse Tribune v. Circuit Ct. for La Crosse County, 115 Wis. 2d 220, 228, 340 N.W.2d 460 (1983) (quoting Wisconsin Employment Relations Bd. v. Allis Chalmers W. Union, 252 Wis. 436, 440-41, 32 N.W.2d 190(1948)).
Counsel indicated at oral argument that if Lagundoye‘s convictions are vacated and his pleas withdrawn, Lagundoye could petition the federal government for readmission into the United States. Thus, this decision could, theoretically, have a practical effect upon the existing controversy. In any event, both parties agree that the issue is not moot, and we believe the issue of the potential retroactive application of a ruling of this court to cases on collateral review involves an issue of great public importance that is likely to reoccur. See State v. Leitner, 2002 WI 77, ¶ 14, 253 Wis. 2d 449, 646 N.W.2d 341.
Bousley v. United States, 523 U.S. 614, 616 (1998).Regarding Lagundoye‘s forgery charges, the record indicates that the circuit court entered judgment of conviction on July 1, 1998. Thereafter, on January 11, 1999, Lagundoye, acting pro se, filed a motion to modify his sentence. The circuit court denied this motion on January 12, 1999, and Lagundoye filed his notice of appeal on February 5, 1999. On July 25, 2000, the court of appeals affirmed the circuit court. The record does not reflect that Lagundoye took any other action, save his present challenge, regarding these charges. Finally, under
“It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.” And even the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review. ... Indeed, “the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.”
Bousley, 523 U.S. at 621 (citations omitted). As Lagundoye did not challenge his pleas on direct appeal on the basis that they were not knowing and voluntary, the dissent‘s attempt to convert this case into a question of whether Lagundoye knowingly and voluntarily entered into his plea is unavailing.
Id.If a court fails to advise a defendant as required by sub. (1)(c) and a defendant later shows that the plea is likely to result in the defendant‘s deportation, exclusion from admission to this country or denial of naturalization, the court on the defendant‘s motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.