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  • WisBar News
    January 13, 2015

    Cases May Impact Defense Attorneys Advising on Immigration Consequences

    Jan. 13, 2015 – The Wisconsin Supreme Court has added three cases to its docket, including two cases that may impact a defense counsel’s obligation to advise criminal defendants on the immigration consequences of plea deals.

    In both cases, State v. Ortiz-Mondragon and State v. Shata, defense counsel informed their clients that pleading guilty may result in deportation. Both defendants were deported, and now argue that counsel did not provide them with enough information.

    Fernando Ortiz-Mondragon, who has four U.S.-born children, argues that his lawyer did not inform him that pleading guilty to a substantial battery as an act of domestic abuse required mandatory deportation and permanent inadmissibility to the U.S.

    The circuit and appeals courts both ruled that counsel adequately advised the client on the possibility of deportation because it was not clear that that crime would require it.

    The state argues that although mandatory deportation results for crimes of “moral turpitude,” it isn’t always clear which crimes constitute crimes of moral turpitude.

    Similarly, Hatem Shata argues that his lawyer did not tell him that under federal law, pleading guilty to possession of marijuana with intent to deliver results in mandatory deportation. Counsel said there was a strong chance, but didn’t know it was mandatory.

    Shata’s counsel also told him that he had no viable defense and he probably would not prevail at trial, so pleading guilty would allow him to reduce probation time. Shata says that Padilla required counsel to inform him that deportation was mandatory.

    An appeals court ruled in favor of Shata, reversing and remanding to let Shata withdraw his guilty plea. The state says the appeals court misapplied the Padilla requirement.

    A decision by the Wisconsin Supreme Court is expected to clarify the scope of defense counsel’s obligation to advise defendants of their likely risk of deportation under Padilla.

    State v. Williams

    The supreme court also accepted review of a case to determine whether the evidence was sufficient to convict Maltese Williams on two counts of felony murder. A victim was killed when Williams and others attempted to steal pot from a drug dealer’s home.

    The felony murder charge was based on Williams’ involvement in the attempted armed robbery. However, the appeals court certified the case, noting that while Williams was trying to steal marijuana from the drug dealer, the victim (Robinson) was not the target.

    The jury was instructed that Williams could be found guilty of the felony murder of Robinson only if there was an attempted armed robbery of Robinson, the victim.

    But the statutory scheme for felony murder, the appeals court also noted, suggests that Williams could be convicted of felony murder regardless of whether the drug dealer, the target of the armed robbery, was the person who was killed during the attempt.

    The supreme court is likely to decide whether the sufficiency of the evidence should be measured against the jury instructions or the statutory requirements.

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