July 9, 2015 – Hatem Shata, an Egyptian national, argued that his lawyer gave him bad advice when he said a guilty plea would trigger a “strong chance” of deportation instead of telling him deportation was a certainty. Recently, the state supreme court ruled that counsel’s advice was not deficient, rejecting Shata’s request for a plea withdrawal.

After Shata pled guilty to one count of possession with intent to deliver marijuana as a party to a crime, he filed a post-conviction motion to withdraw the plea under Padilla v. Kentucky, 559 U.S. 356 (2010), which requires counsel to inform clients of the deportation consequences of pleas.

Shata, who has lived in the U.S. since 1991 but is not a U.S. citizen, argued that deportation was “mandatory” under applicable immigration laws, but his counsel did not tell him that. If counsel told him deportation was mandatory, Shata argued, he would have rejected any plea offer and gone to trial, because he did not want to be separated from his wife and children in New Jersey.

An appeals court reversed Shata’s conviction, allowing him to withdraw his plea on the grounds of ineffective counsel. But in State v. Shata, 2015 WI 74 (July 9, 2015), the Wisconsin Supreme Court reversed (5-2), concluding that Shata’s lawyer sufficiently advised him on deportation consequences, rejecting his request to withdraw the plea.

“We conclude that Shata is not entitled to withdraw his guilty plea because he did not receive ineffective assistance of counsel,” wrote Justice Annette Ziegler for the five-justice majority. “Specifically, Shata’s attorney did not perform deficiently.”

The majority noted that Shata’s lawyer was not required to tell him that deportation was certain to result, because deportation was not an absolute certainty. “Executive action, including the United States Department of Homeland Security’s exercise of prosecutorial discretion, can block the deportation of deportable aliens,” Ziegler wrote.

Criminal Charge

In 2011, Shata opened the Sphinx Café in Milwaukee. In 2012, law enforcement learned that large amounts of marijuana were being stored at the cafe. While surveilling the shop, they saw Shata put a cardboard box in the trunk of a parked car nearby.

A 17-year-old employee drove away in the car, and police conducted a traffic stop, uncovering five pounds of marijuana in the box. Executing a search warrant, investigators also found 2.9 grams of marijuana and 1.7 grams of cocaine on Shata.

A criminal complaint alleged that Shata confessed to selling marijuana through the Sphinx Café to support his family, and his 17-year-old employee told police that Shata let the marijuana supplier store up to 20 pounds of marijuana at the café.

Before entering a guilty plea in exchange for leniency, Shata’s lawyer told the court that he informed Shata of potential for deportation if convicted. The court also informed Shata that pleading guilty could result in deportation. Shata said he understood, and acknowledged that he also signed a plea questionnaire with a deportation warning.

The court imposed a one-year prison sentence, with four years extended supervision transferred to New Jersey. The state had recommended two years of probation, with one year of conditional jail time and a stayed two-year prison sentence. Shata had requested probation, and stayed jail time, transferred to New Jersey.

Attorney Not Deficient

In a post-conviction hearing, Shata’s attorney testified that he did not research immigration statutes before telling Shata that deportation was possible, but had consulted with federal prosecutors who said that Shata “could” face deportation.

Shata’s attorney also advised Shata to plead guilty because he had “no defense,” noting that Shata had confessed to the crime. Shata said his attorney promised probation and said he would not be deported. He testified that he would not have pled guilty otherwise, and had received a letter to appear from the Immigration and Naturalization Services.

The circuit court ruled that Shata did not receive ineffective assistance of counsel. In a split decision, the appeals court reversed, concluding Shata’s lawyer was ineffective.

But a supreme court majority ruled that Shata’s lawyer complied with the requirements of Padilla, which only requires lawyers to inform clients of whether a plea “carries a risk of deportation.” Reviewing federal immigration law, the majority noted that Shata faced a “risk of deportation,” and his lawyer sufficiently informed him of that possibility.

The majority noted that in Padilla, the defendant’s counsel informed the defendant that he would not be deported if he pled guilty when in fact the crime made him “deportable.”

The majority rejected Shata’s claim that when a defendant commits a “deportable” offense, counsel must inform the client that deportation is automatic upon conviction.

Justice Ziegler noted that “deportation is not mandatory for a felony conviction” because immigration authorities have discretion to make deportation decisions. Not always, the majority explained, does a felony conviction automatically result in deportation.

“[I]f an attorney were to give the advice that Shata argued is required, the attorney may, in fact, be giving wrong advice,” Justice Ziegler wrote.

Dissent

Justice Ann Walsh Bradley wrote a dissenting opinion, joined by Justice Shirley Abrahamson, concluding that Padilla required Shata’s lawyer to inform Shata “that his conviction for drug distribution made him subject to automatic deportation.”

The dissenters said the majority “lowers the professional standard for Wisconsin attorneys” below national standards and “misunderstands Padilla’s holding.”

“The probable result is that clients will be left with only vague and incomplete advice about the immigration consequences of entering a plea,” Justice Bradley wrote.

“Because I am confident that clients deserve more and recognize that Wisconsin attorneys must do better, I respectfully dissent.”