State v. Al Bawi

• Decision Date: 18 January 2023
• Docket Number: 2021AP432-CR
• Parties: State of Wisconsin, Plaintiff-Respondent, v. Ahmed A.M. Al Bawi, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

State of Wisconsin, Plaintiff-Respondent, v. Ahmed A.M. Al Bawi, Defendant-Appellant.

No. 2021AP432-CR

Court of Appeals of Wisconsin, District III

January 18, 2023

Not recommended for publication in the official reports.

APPEAL from a judgment and an order of the circuit court for Outagamie County No. 2018CF669, CARRIE A. SCHNEIDER, Judge. Affirmed.

Before Stark, P.J., Hruz and Gill, JJ.

HRUZ J.

¶1 Ahmed Al Bawi appeals from a judgment convicting him of third-degree sexual assault and from an order denying his postconviction motion to withdraw his no-contest plea. Al Bawi argues that he must be permitted to withdraw his plea because his trial counsel was constitutionally ineffective by failing to adequately advise him of the deportation consequences associated with his plea. Al Bawi asserts that the deportation consequences of his plea were clear under the relevant federal immigration law-namely, that he was convicted of an aggravated felony which would make him "presumptively deportable." Al Bawi therefore contends that his trial counsel performed deficiently by: (1) failing to give him a "probabilistic assessment" of the risk that he "would actually encounter immigration consequences"; and (2) failing to perform legal research or consult with an immigration attorney to determine the likelihood of his deportation after Al Bawi insisted that his prior assistance to the United States military would protect him from deportation.

¶2 We conclude that Al Bawi's trial counsel correctly advised Al Bawi that he "would be subject to deportation" upon pleading no contest to the charge of third-degree sexual assault. Counsel was not required to use any particular words, such as "very likely" or "strong chance," to quantify the risk when advising Al Bawi on the deportation consequences of his plea. Counsel also was not required to research the relevant immigration law or seek guidance from another attorney because counsel ultimately provided correct legal advice. Because an attorney does not perform deficiently by correctly advising a criminal defendant there is a risk of deportation as a result of his or her guilty or no-contest plea, see State v Shata, 2015 WI 74, ¶67, 364 Wis.2d 63, 868 N.W.2d 93 ("Correct advice is not deficient."), trial counsel did not perform deficiently. Accordingly, we affirm.

BACKGROUND

¶3 Al Bawi is an Iraqi citizen who previously served as a translator for the U.S. military. As a result of his cooperation with the U.S. military, Al Bawi faced threats and persecution in Iraq. The U.S. eventually granted Al Bawi a special visa, and he became a lawful permanent U.S. resident in 2012.

¶4 In August 2018, the State filed a criminal complaint charging Al Bawi with third-degree sexual assault. According to the complaint, Al Bawi had made aggressive, unwanted sexual advances toward the victim, who was a friend of Al Bawi, on an evening in September 2017. Al Bawi and the victim spent the evening drinking alcohol and smoking marijuana, and, at one point, they began kissing. Al Bawi attempted to place his hands down the victim's pants, but she told him to stop because they were just friends. The victim subsequently went to her bedroom, undressed, and fell asleep. Later in the night, the victim awoke to Al Bawi cuddling and "fingering" her. Al Bawi also placed the victim's hand on his penis. The victim told Al Bawi to leave her house, which he then did. Al Bawi later admitted to law enforcement that he had "play[ed] with [the victim's]" vagina after he noticed the victim was naked, which he "took … as a signal."

¶5 In December 2019, Al Bawi pled no contest to the crime charged. He signed a plea questionnaire, which stated "I understand that if I am not a citizen of the United States, my plea could result in deportation …." The circuit court provided a similar warning at the plea hearing, advising Al Bawi that his plea "could result in deportation" if he was not a U.S. citizen. That warning largely followed the warning prescribed under Wis.Stat § 971.08(1)(c).^[1] See State v. Mursal, 2013 WI.App. 125, ¶¶15-16, 351 Wis.2d 180, 839 N.W.2d 173 (deportation warning required by § 971.08(1)(c) need not be given verbatim; substantial compliance will suffice); see also State v. Reyes Fuerte, 2017 WI 104, ¶36 n.15, 378 Wis.2d 504, 904 N.W.2d 773 ("Our decision today does not affect the substantial compliance doctrine [discussed in Mursal.]"). The court later withheld sentence and placed Al Bawi on five years' probation with twelve months' conditional jail time.

¶6 Approximately five months after Al Bawi began serving his conditional jail time, the Outagamie County Jail received an "Immigration Detainer-Notice of Action" from the Department of Homeland Security (DHS).^[2] The notice stated that there was "probable cause" that Al Bawi "is removable under U.S. immigration law." The notice also asked the jail to notify DHS when Al Bawi would be released and to maintain custody of him for up to two days beyond his release date "to allow DHS to assume custody."

¶7 Al Bawi subsequently filed a postconviction motion, seeking to withdraw his no-contest plea. He alleged that neither he nor his trial counsel knew that third-degree sexual assault was an "aggravated felon[y]" under immigration law, which "virtually always" results in deportation. Al Bawi argued that he received ineffective assistance of counsel because he had been given deficient legal advice regarding the deportation consequences of his plea and, if he had been properly advised of those consequences, Al Bawi would have refused to enter his no-contest plea to third-degree sexual assault.

¶8 Al Bawi attached to his motion an affidavit from his trial counsel, in which counsel stated that he "told [Al Bawi] on a number of occasions … that a guilty plea could potentially make him subject to a deportation." Counsel also stated that each time he discussed deportation with Al Bawi, Al Bawi responded that his service to the U.S. military "would protect him from deportation." Counsel noted that "[t]o the best of [his] recollection," he did not research the immigration consequences of a conviction for third-degree sexual assault, nor did he tell Al Bawi that such a conviction "would make it extremely likely that [Al Bawi] would be deported from the United States."

¶9 The circuit court held a Machner^[3] hearing on Al Bawi's motion, at which both Al Bawi and his trial counsel testified. Counsel testified that every time he discussed Al Bawi's immigration status, Al Bawi "indicated that his immigration status was secure; that he had worked for the military." Counsel further stated that he "did not defer to [Al Bawi's opinion about his immigration status]. I always consistently told him that he would be subject to deportation if he entered a plea." When asked whether counsel performed any research after Al Bawi said his immigration status was secure, counsel responded:

I did not. I told him multiple times again that he would be subject to deportation. It seemed as though he brushed that off. I don't know why. He certainly wasn't getting that from me. I would tell him multiple times that this was a serious charge and he would be subject to deportation, not necessarily deported but would be subject to that, and he would have to deal with that in immigration court.

¶10 Trial counsel also testified that he had discussed with Al Bawi the "context … of increased deportation" under the then-current U.S. President, but counsel conceded that he "never weighed in on the likelihood that [Al Bawi] would be deported." Counsel admitted that he could not recall researching the potential immigration consequences of Al Bawi's plea, nor could he recall reading any immigration statutes or contacting other attorneys for advice. Counsel further testified, however, that he had previous experience representing immigrant criminal defendants and had "participated in seminars solely on immigration law."

¶11 Al Bawi had a different perspective about the legal advice he had received. Al Bawi testified at the Machner hearing that he and his trial counsel discussed immigration consequences on only two occasions. Al Bawi said that during the first conversation, which was before the plea hearing, he asked counsel, "[D]o you think I'd get deported, even though I worked for the U.S. military?" Counsel purportedly responded, "I'm not an immigration lawyer, but I highly doubt it." With regard to the second conversation, Al Bawi testified that counsel had told him before sentencing that the plea "can cause issues getting your citizenship down the road, but then he corrected himself. He said, but I wouldn't even worry about it because you worked for the Army." Al Bawi said that "the word deportation" was never mentioned during the second conversation.

¶12 Al Bawi also testified that he would not have entered the plea if he had been told by his trial counsel that "there was a strong possibility that [he] would be deported … after entering this plea." Al Bawi explained that "getting deported is a death sentence" because an insurgent group in Iraq has him "on a hit list." He testified that while he was still in Iraq, his vehicle was shot sixteen times, and one of those bullets hit him in the leg ¶13 The circuit court issued a written decision denying Al Bawi's postconviction motion. The court recognized that there were "multiple inconsistencies in the record" as to trial counsel's advice. Nonetheless, the court resolved those inconsistencies by finding trial counsel's "Machner hearing testimony to be the most credible record of the advice … provided [to] Al Bawi" and by expressly finding Al Bawi incredible in key respects. Specifically, the court found that trial counsel advised Al Bawi that Al Bawi ...