Jan. 3, 2018 – The Wisconsin Supreme Court has ruled (5-2) that a defendant cannot withdraw his guilty plea even though the trial court did not fully comply with the state statute that requires judges to advise defendants about immigration consequences.
Jose Reyes Fuerte was living in the U.S. illegally when he pled guilty to two crimes: attempting to flee or elude police and driving under the influence of drugs.
At the time, Reyes Fuerte was also facing deportation proceedings in immigration court. His defense was cancellation, which allows the U.S. attorney general to cancel removal from the country if a subject has not been convicted of a crime of moral turpitude.
Immigration Consequences Advisement
Wis. Stat. section 971.08(1)(c) requires judges to inform defendants that if they are not U.S. citizens, a no contest or guilty plea “may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law.”
Before Reyes Fuerte entered his guilty plea, the judge did not recite those exact words. The judge said a person who is not a “resident” of the U.S. could face deportation and did not inform Reyes Fuerte that a conviction could result in “denial of naturalization.”
Further, section 971.08(2) says the court “shall” permit the defendant to withdraw a guilty plea “[i]f a court fails to advise a defendant as required by sub. (1) (c) and a defendant later shows that the plea is likely to result in the defendant's deportation, exclusion from admission to this country or denial of naturalization.”
Although it was unclear whether eluding police was a crime of moral turpitude when Reyes Fuerte entered the guilty plea – impacting his cancellation defense – the U.S. Court of Appeals for the Seventh Circuit subsequently ruled that violating Wis. Stat. 346.04(3), eluding police, is a crime of moral turpitude for purposes of immigration.
Thus, Reyes Fuerte moved to withdraw his plea, arguing the judge did not properly advise him of the immigration consequences as required and that the plea was likely to result in deportation. The circuit court denied the motion, but a state appeals court reversed.
The appeals court concluded that the circuit court judge did not substantially comply with the advisement required under section 971.08(1)(c), noting that Reyes Fuerte could have been confused when the court referred to “resident” instead of “citizen.”
Reyes Fuerte also did not receive the “naturalization” warning, the appeals court explained, remanding the case to determine whether he would have fulfilled the requirements for cancellation without the convictions entered upon his guilty plea.
The appeals court also ruled that section 971.08(2) and the Wisconsin Supreme Court’s 2002 decision in State v. Douangmala make clear that harmless error arguments do not apply to errors regarding the immigration consequences advisement.
But in State v. Reyes Fuerte, 2017 WI 104 (Dec. 19, 2017), the 5-2 majority overruled Douangmala, concluded that the statute permits harmless error analysis, and Reyes Fuerte could not withdraw his plea because the circuit court committed harmless error.
Harmless Error Analysis Now Applies
The majority advised that circuit court judges should read the language of the advisement as written in section 971.08(1)(c) since the legislature drafted that provision in quotation marks. But circuit courts now have a “safety net” if they don’t.
“Though, as a result of this opinion, harmless error now applies as a ‘safety net’ for circuit courts, the best practice remains reading the exact language of the statute,” wrote Justice Michael Gableman for the five-justice majority.
Although section 971.08(2) seemingly requires a plea withdrawal when courts do not follow the immigration advisement and a defendant can show deportation is “likely,” the majority pointed to two savings clauses: Wis. Stat. sections 971.26 and 805.18.
Section 971.26 says: “No indictment, information, complaint or warrant shall be invalid, nor shall the trial, judgment or other proceedings be affected by reason of any defect or imperfection in matters of form which do not prejudice the defendant.”
Section 805.18, made applicable to criminal proceedings under section 972.11, says courts shall “disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party.”
That section also says, in relevant part, that: “805.18(2) [n]o judgment shall be reversed or set aside … for error as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure a new trial.”
All three provisions must be read together, Gableman noted, as part of the criminal code. The unanimous decision in Douangmala, the majority notes, was “objectively wrong” because it did not harmonize these closely-related statutes.
“We hold that Wis. Stat. §§ 971.08(2), 971.26, and 805.18 are most comprehensibly harmonized by applying harmless error analysis,” Justice Gableman wrote. “All of the relevant statutes use ‘shall,’ and, accordingly, none is ‘more mandatory’ than any other.”
He noted that plea colloquies in federal court, which give immigration advisements similar to the one required in Wisconsin, are subject to harmless error analysis.
“Federal courts consider an imperfect immigration advisement harmless error where the defendant otherwise knows of potential immigration consequences,” Gableman wrote.
It was Harmless Error
Finally, the majority applied the harmless error analysis to rule that Reyes Fuerte was not prejudiced by the circuit court’s failure to substantially comply with the immigration advisement that circuit court judges are required to read before entering a guilty plea.
The majority noted that defense counsel, who was bilingual, reviewed the plea questionnaire and waiver of rights form in Spanish with Reyes Fuerte and the form contains language similar to the statutory immigration advisement:
“[W]e conclude that Reyes Fuerte had actual knowledge of the potential immigration consequences of his plea and thus the circuit court’s errors were harmless.”
Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley, concluding that Douangmala was properly decided, the majority employs a novel harmless error interpretation and “flouts the generally accepted rule of stare decisis.”
“The majority has no justification beyond its doctrinal disposition to overrule Douangmala,” Justice Abrahamson wrote, noting that the 2002 case was decided unanimously. “The only change since the Douangmala decision is the makeup of the court. A change in judges is not a valid reason to overturn a decision of the court.”
In overruling the Douangmala decision, Abrahamson said the majority “scoffs at stare decisis and jeopardizes finality and certainty in the law.”