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  • WisBar News
    January 28, 2016

    Supreme Court Okays Plea Withdrawal, No Notice on Immigration Consequences

    Joe Forward

    Jan. 28, 2016 – A lawful permanent resident of the U.S. who pled guilty to drug charges more than a decade ago can withdraw her pleas and enter new ones because she did not receive proper warnings about the immigration consequences of pleading guilty.

    That’s the Wisconsin Supreme Court’s controlling decision in State v. Valadez, 2016 WI 4 (Jan. 28, 2015), although concurrences and dissents were filed.

    Melisa Valadez, who became a lawful permanent resident in 2001 at age 15 and has three children who are U.S. citizens, pled guilty to drug possession-related charges in 2004 and 2005. In 2013, more than eight years later, Valadez moved to withdraw her pleas.

    She said her pleas should be withdrawn because the circuit court judges who accepted and entered her guilty pleas did not follow the statutory requirements of Wis. Stat. section 971.08(1)(c), which requires circuit courts to explain the immigration consequences of pleading guilty or no contest to a crime before accepting a plea.

    A circuit court’s failure to inform defendants of possible immigration consequences triggers section 971.08(2), which requires the court to vacate judgments and permit plea withdrawals if the defendant shows “that the plea is likely to result in the defendant’s deportation, exclusion from admission to this country or denial of naturalization.”

    Valadez noted the likelihood of exclusion from admission to the U.S. if she ever left the country and tried to return, based on the convictions that resulted from her guilty pleas.

    Four justices agreed that Valadez did not receive the proper warning and she proved that her pleas would “likely” result in exclusion from admission, based on federal law.

    The majority opinion, written by Justice Shirley Abrahamson, rejected any argument that Valadez must take affirmative steps to prove her exclusion would be “likely.”

    “Requiring [her] to leave the country and seek readmission to demonstrate that she is ‘likely’ to be excluded from admission is the equivalent of asking her to demonstrate exclusion from admission to a 100% certainty,” wrote Justice Abrahamson. “Wisconsin Stat. § 971.08(2) requires an immigration consequence be ‘likely,’ not ‘certain.’”

    Abrahamson’s majority opinion also noted that since Valadez proved the “likelihood” of her exclusion from admission to the U.S., the court did not need to decide whether her pleas would likely result in deportation or the denial of naturalization.

    The court’s controlling decision reversed a circuit court order, which denied Valadez’s motion for plea withdrawal, and remanded the case with directions to vacate the convictions and permit Valadez to withdraw her pleas and enter new pleas.


    Justice Annette Ziegler, joined by Justice Michael Gableman, agreed to reverse the circuit court’s order denying Valadez’s plea withdrawal motion because she “established that her pleas are likely to result in her exclusion from admission to this country.”

    But Justice Ziegler (and Gableman) did not agree that plea withdrawal should be automatic on remand, noting other possible impediments to plea withdrawal.

    Ziegler suggested, but did not decide, that Valadez’s plea withdrawal motion could be time-barred, an argument made by Justice David Prosser in his dissent.

    “Instead, I would remand for further proceedings, which may indeed result in withdrawal of Valadez’s guilty pleas or perhaps, could result in a determination of how to proceed if the State has somehow preserved the issues raised by Justice Prosser,” Ziegler wrote.


    Justice Prosser dissented, joined by Chief Justice Patience Roggensack, noting that Valadez filed the motion to withdraw her pleas more than eight years after she entered her last plea, and after serving her sentences.

    The dissenters argued that non-U.S. citizens should not have an absolute right to withdraw their pleas based on a court’s failure to give statutory immigration warnings, noting that defendants who are U.S. citizens don’t have an absolute right to withdraw pleas.

    That is, if a U.S. citizen defendant in Wisconsin proves there was a defective plea colloquy before entering the plea, the state can still show the defendant entered the plea knowingly, intelligently, and voluntarily through what’s known as a Bangert hearing.

    Justice Prosser said a reasonable time limit should apply when non-U.S. citizens are attempting to withdraw their pleas under section 971.08(2), because an untimely plea withdrawal could prevent retrial or substantially prejudice the government.

    “Permitting non-citizens to withdraw their pleas to serious crimes whenever they want to and regardless of the circumstances simply because they did not receive the statutory warning is too incongruous and unreasonable to be accepted,” Justice Prosser wrote.

    Abrahamson’s majority opinion did note that the state, in this case, conceded that it was not arguing for a time limit, and also conceded that Valadez’s motion was timely.

    Justice Rebecca Bradley did not participate in the case.

    Related Articles

    Court Accepts 12 Cases, Including One on Immigration Status at SentencingWisBar News (Jan. 26, 2016)

    Plea Bargaining for Noncitizen Clients: What Defense Attorneys Should KnowWisBar InsideTrack (Oct. 21, 2015)

    Counsel Not Required to Tell Client that Deportation was Certain if ConvictedWisBar News (July 9, 2015)

    Defendant Facing Deportation Can’t Withdraw Guilty Plea, Supreme Court SaysWisBar News (Aug. 13, 2012)

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