Aug. 13, 2012 – An individual who pleaded guilty to a crime in 1992 and is now facing deportation proceedings can’t now withdraw the plea, the Wisconsin Supreme Court has ruled.

Wis. Stat. section 971.08(1) requires judges to advise defendants of the following before pleading guilty to a charge:

“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.”

Abraham Negrete says he does not recall whether the circuit court judge advised him of the immigration consequences of pleading guilty, but says he wouldn’t have done so if he understood that it could lead to deportation at some point. The plea transcript is no longer available. His lawyer on the case is now deceased, and the judge is retired. He did sign a “plea questionnaire” that informs defendants that pleading guilty could have such consequences.

Under section 971.08(2), defendants who plead guilty or no contest to Wisconsin law violations can withdraw the plea if they prove the judge did not inform them of the immigration consequences, and they plea is “likely to result” in immigration consequences.

Negrete is now facing deportation proceedings. In State v. Negrete, 2012 WI 92 (July 12, 2012), a Wisconsin Supreme Court majority ruled that Negrete can’t withdraw the plea.

“Negrete has failed to sufficiently allege that the plea-accepting court did not tell him of the potential immigration consequences of his plea,” wrote Justice Patience Roggensack for the 5-2 majority. “In addition, his motion fails to allege sufficient facts demonstrating a causal nexus between his guilty plea and the likelihood of any immigration consequences.”

Even if the circuit court did not inform Negrete under section 978.01(1), the error was harmless because Negrete knew independently of the immigration consequences, the circuit court concluded. The court of appeals affirmed. The supreme court now affirms the court of appeals.

“A defendant’s allegation that he does not recall whether the judge told him of the potential immigration consequences of his plea, or that it is possible that the judge might have failed to do so, does not allege facts that, if true, would entitle the defendant to relief,” the majority explained, noting that defendants must also show a causal link to immigration consequences.

Dissent

Chief Justice Shirley Abrahamson wrote a dissenting opinion (joined by Justice Ann Walsh Bradley), arguing that the majority opinion “improperly applies the first statutory pleading requirement and creates a second, brand new pleading requirement for a motion to withdraw a guilty or no contest plea under Wis. Stat. § 971.08(2)” when warnings aren’t given.

“It is extremely unfair to for the majority to apply these new-for-2012-judicially-created pleading requirements retroactively to Negrete’s motion, which was filed in 2010,” wrote the chief justice, who argued that the pleadings were sufficient for a decision on the merits.

“Everyone agrees that it is unfortunate that there is no transcript of Negrete’s 1992 plea hearing,” she wrote. “But whose fault is that? If there is ‘fault,’ it lies somewhere in the judicial system, not with Negrete. Yet the majority opinion places the burden caused by the missing transcript entirely on Negrete. …The majority places an insurmountable hurdle in front of Negrete.”

Jor Forward is the legal writer for the State Bar of Wisconsin.