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  • WisBar News
    September 14, 2017

    Failure to Inform Minor on DACA Implications Not a Basis for Plea Withdrawal

    Joe Forward


    Sept. 14, 2017 – A criminal defendant argued that his lawyer failed to tell him that pleading guilty to armed robbery would impact his eligibility for the Deferred Action for Childhood Arrivals (DACA) program. Recently, a state appeals court upheld the plea.

    Born in Mexico, Marcos Rosas Villegas was brought to the U.S. at age five. At age 16, he was charged with armed robbery as a party to a crime.

    The state alleged that he and two other accomplices unlawfully entered an apartment wielding knives and used duct tape to restrain the occupants, two women, before stealing their money. Two children were asleep in the other room.

    The court granted the state’s request to charge Villegas as an adult. His lawyer unsuccessfully challenged the adult court jurisdiction and did not appeal.

    Ultimately, Villegas pled guilty to armed robbery, a felony, and other related charges were dropped. The circuit court denied his postconviction motion, which challenged the waiver to adult court and argued that a plea withdrawal was warranted.

    In State v. Villegas, 2015AP2162 (Sept. 13, 2017), a three-judge panel for the District II Appeals Court ruled that the guilty plea was valid and thus Villegas “waived the right to challenge the juvenile waiver proceedings,” including an ineffective assistance claim.

    The Plea

    Before entering the guilty plea, the court engaged Villegas in a colloquy to ensure he understood the plea and the rights he was giving up. The court cautioned that a guilty plea could result in deportation if he was not a U.S. citizen. No interpreter was present.

    During the colloquy, Villegas’ attorney suggested that Villegas might not understand what the judge was saying, but Villegas ultimately said that he understood.

    The court entered the conviction and after sentencing, Immigration and Customs Enforcement (ICE) notified Villegas that he would be deported after serving the sentence.

    The conviction meant that Villegas would not be protected from deportation by DACA, a federal policy protecting undocumented persons who entered the U.S. as children. Criminal convictions bar DACA renewals, which are required every two years.1

    Villegas’ postconviction motion followed. He said he did not understand the plea colloquy and felt pressured to sign the plea questionnaire. He also asserted that his counsel did provide effective assistance, including assistance in challenging adult court.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Counsel had told Villegas he could challenge the removal to adult court, but the chances of success were minimal. Thus, Villegas did not challenge the determination.

    Counsel did not know Villegas was not a U.S. citizen before the juvenile waiver hearing, but knew before the plea hearing and advised on the possible deportation consequences. Counsel testified that he told Villegas deportation was highly likely.

    The lawyer also testified that taking the plea deal was a strategy intended to minimize the damage to Villegas, who was not likely to win at trial. The lawyer indicated his belief that Villegas, who spoke English well, understood the consequences of the plea.

    Villegas testified differently through an interpreter at the postconviction hearing. He said his lawyer did not explain anything, other than to read the plea questionnaire, and did not advise him on immigration consequences of pleading guilty to armed robbery.

    Villegas admitted knowing deportation was possible, but not that it was almost certain. He also said that his lawyer did not speak to him about appealing removal to adult court.

    Villegas’s postconviction lawyer conceded that trial counsel had adequately advised Villegas on the deportation consequences of pleading guilty. The judge ruled Villegas forfeited the right to challenge adult court jurisdiction since the guilty plea was valid.

    The appeals court panel agreed. “[T]he circuit court permissibly and correctly denied the motion to withdraw his plea,” wrote Judge Brian Hagedorn. “Since his plea suffers from no infirmities, he has waived any right to challenge his juvenile waiver proceeding.”

    No Plea Withdrawal

    The appeals panel explained that Villegas’ counsel was not required to advise Villegas that entering a guilty plea would result in automatic and irreversible deportation.

    Federal law, the panel explained, appears to allow applications for a legal immigration status five years after release from prison if the person committed the crime as a minor.

    Villegas’ lawyer “had no constitutional duty to give specific, direct advice on how pleading guilty would affect Villegas’ possibilities for readmission beyond the accurate, generalized warnings that were given,” wrote Judge Hagedorn.

    Similarly, the panel explained that Villegas’ lawyer did not perform deficiently by failing to give advice regarding the DACA implications, noting DACA “is an exercise of prosecutorial discretion by the executive branch that can be changed at any time.”

    The panel rejected Villegas’ argument that his counsel was ineffective for failing to tell him that a guilty plea would waive his right to challenge adult court jurisdiction.

    The panel ruled that, even assuming deficient performance, Villegas failed to show prejudice, the probability of a different result but for the deficiency. “We think it highly probable that [the lawyer’s] alleged deficiency would have changed the calculus.”

    “We see no reason to think that learning he could not appeal the waiver would have significantly affected his decision to plea when he already decided he would not do so due to the less-than-promising chances of success,” Judge Hagedorn explained.

    Finally, the panel ruled that Villegas’ plea was entered knowingly, intelligently, and voluntarily, concluding the court ensured he understood the plea and was not required to inform him that a guilty plea would bar any jurisdictional challenge to adult court.

    “Villegas launches a full-court press on all aspects of his criminal conviction,” Hagedorn wrote. “But he has not shown that he is entitled to withdraw his guilty plea.”

    “By choosing to plead guilty without demonstrating error, Villegas has waived the right to challenge the juvenile court’s decision to waive jurisdiction into adult court.”

    1 President Donald Trump announced on Sept. 5, 2017, that the administration was rescinding the DACA policy, which was instituted in 2012 by President Barack Obama. DACA beneficiaries will not be able to renew two-year authorizations after Oct. 5, 2017.


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