Sept. 9, 2016 – A state appeals court has remanded a case to determine whether a conviction for fleeing an officer was “likely to result” in a defendant’s deportation such that a failure to inform him of immigration consequences allows a plea withdrawal.

In 2014, Jose Alberto Reyes Fuerte pled guilty to a felony charge of fleeing an officer and misdemeanor driving with controlled substances in the blood, second offense.

In State v. Fuerte, 2015AP2041-CR (Sept. 8, 2016), a three-judge panel for the District IV Court of Appeals gave Fuerte another chance to prove that a plea withdrawal was warranted because he did not receive a proper advisement from the circuit court.

The Advisement

Fuerte is not a citizen of the U.S., and state statute requires courts, before accepting a plea, to expressly inform defendants that pleading guilty or no contest to a crime could result in immigration consequences, using language in Wis. Stat. section 971.08(1)(c).

Under the statute, the court must state the following: “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.”

In this case, the circuit court did not recite those exact words. After pleading guilty, Fuerte moved to withdraw his plea on the grounds that he was not fully informed.

The state argued that the circuit court “substantially complied” with section 971.08(1)(c) even though the judge did not use the specific language of the statute.

The circuit court judge in Columbia County told Fuerte that a conviction of a person “who is not a resident” of the U.S. could lead to that person “either being denied re-entry or that person being required to leave this country.”

The state also argued that Fuerte knew about the deportation consequences of pleading guilty because he filled out a plea questionnaire and waiver form that included that information. This knowledge precluded a plea withdrawal, the state argued.

The circuit court denied Fuerte’s motion to withdraw his plea and Fuerte appealed. The three-judge appeals court refused to vacate Fuerte’s convictions. But the panel sent the case back for an evidentiary hearing that might allow Fuerte to withdraw his pleas.

Advisement Significantly Deviated

The panel noted that circuit courts may deviate slightly from a statute that requires an advisement to a party, such as section 971.08(1)(c), as noted in a prior case. “[W]e explained that slight deviations are tolerated so long as the court’s advice accurately and completely conveys the substance of the statute,” wrote Judge Paul Lundsten.

However, the court ruled that the advisement Fuerte received did not substantially comply with the statute because it deviated in two significant ways. First, the judge failed to use the term “citizen,” instead referring to a “resident.”

“For immigration and deportation purposes, the two terms have very different legal implications,” wrote Lundsten, noting Fuerte could have believed that as long as he was a “resident” of the U.S., he would be free from any immigration consequences.

Second, the circuit court judge omitted the third part of the advisement: that a conviction could lead to a “denial of naturalization,” the panel noted.

The state argued that it didn’t matter because denial of naturalization was not an issue for Fuerte. “As far as we can tell, this does-not-matter-here argument is the sort of harmless error argument barred by the statute and the Supreme Court’s interpretation of the statute,” noting State v. Douangmala, 2002 WI 62, 253 Wis.2d 173, 646 N.W.2d 1.

The panel affirmed what the Supreme Court had ruled in Douangmala: that harmless error principles don’t apply to section 971.08(2) and it can never be harmless error when courts don’t comply with the advisement on immigration consequences.

“[Failing] to provide a proper advisement,” Lundsten wrote, “cannot be deemed harmless based on a showing that the defendant was actually aware of the immigration consequences information that is contained in the required advisement.”

Thus, the court rejected the state’s argument that Fuerte knew of the immigration consequences, based on a plea questionnaire, despite the improper advisement.

Was Deportation Likely?

The panel noted that in order to obtain a plea withdrawal in these circumstances, a defendant must show that they were ill-advised and the plea was “likely to result” in deportation “or one of the immigration consequences listed in the statute.”

The panel noted that Fuerte alleged sufficient facts to show that deportation was likely if he was convicted for fleeing police, enough for an evidentiary hearing on the issue.

Fuerte alleged that one of his pleas would disqualify him from a deportation “cancellation” defense, noting that he was already the subject of deportation proceedings when he entered the pleas on the misdemeanor and felony charges.

Deportation cancellation defenses are not available to persons who commit a “crime involving moral turpitude,” and the Seventh Circuit Court of Appeals has ruled that felony fleeing police is a crime involving moral turpitude, the panel noted.

“In sum, the gist of Reyes Fuerte’s pertinent allegations was that his plea to the fleeing an officer charge affected his ongoing deportation situation because, but for that plea, he would have had a viable cancellation defense to the pre-existing deportation proceeding,” Judge Lundsten wrote.

The panel noted that defendants have the burden to prove a “causal nexus” between entry of the plea and the federal government’s institution of adverse immigration consequences. They cannot assert “bare allegations” that it could happen.

The panel rejected the state’s argument that Fuerte could not meet the burden by showing he would no longer be able to assert a “cancellation defense” and that Fuerte must show the guilty plea would trigger an actual deportation proceeding.

“We see nothing in the text of Wis. Stat. § 971.08(2) suggesting that the statute excludes ongoing deportation situations,” Lundsten wrote.

“[W] conclude that the burden on Reyes Fuerte was to sufficiently allege that his plea made the difference between there being a chance that he would be deported and it being likely that he would be deported in the ongoing proceedings.”

But the panel noted that an evidentiary hearing is needed to determine whether Fuerte’s allegations are true and that he would have met the factors for discretionary deportation “cancellation” if not for the guilty plea to felony fleeing police.