State v. Douangmala
| Decision Date | 19 June 2002 |
| Docket Number | No. 00-3292-CR.,00-3292-CR. |
| Citation | 2002 WI 62,646 N.W.2d 1,253 Wis.2d 173 |
| Parties | STATE of Wisconsin, Plaintiff-Respondent, v. Sisakhone S. DOUANGMALA, Defendant-Appellant-Petitioner. |
| Court | Wisconsin Supreme Court |
For the defendant-appellant-petitioner there were briefs by Robert R. Flatley and Will & Flatley, Green Bay, and oral argument by Robert R. Flatley.
For the plaintiff-respondent the cause was argued by Shunette T. Campbell, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
¶ 1.
This is a review of an unpublished decision of the court of appeals.1 The court of appeals affirmed an order of the Circuit Court for Brown County, Donald R. Zuidmulder, Judge, denying the motion of Sisakhone S. Douangmala, the defendant, to withdraw his plea of no contest.
¶ 2. Wisconsin Stat. § 971.08(1)(c) (1999-2000)2 requires a circuit court to address a defendant personally and advise the defendant as follows: "If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law."
¶ 3. This case presents the following question: If a circuit court fails to give the deportation3 warning required by § 971.08(1)(c), when accepting a guilty or no-contest plea, is a defendant entitled to withdraw the plea later upon a showing that the plea is likely to result in the defendant's deportation, regardless of whether the defendant was aware of the deportation consequences of the plea at the time the defendant entered the plea?
¶ 4. We answer the question presented in the affirmative. We conclude that Wis. Stat. § 971.08(2) expressly sets forth the remedy to be granted upon a defendant's motion if a circuit court fails to advise a defendant about deportation consequences as required by § 971.08(1)(c) and if the defendant shows that the plea is likely to result in deportation. Section 971.08(2) states that under these circumstances the circuit court "shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea."4 The defendant in the present case fulfilled the conditions set forth in § 971.08(2), and accordingly we reverse the decision of the court of appeals affirming the order of the circuit court that denied the defendant's motion to withdraw his no-contest plea. We remand the cause to the circuit court to vacate the judgment of conviction and permit the defendant to withdraw his plea and enter another plea.
¶ 5. For the purposes of this review, the facts are not in dispute.
¶ 6. The defendant, Sisakhone S. Douangmala, is a native of Laos and is not a U.S. citizen. On March 12, 1998, a criminal complaint was filed against the defendant. A preliminary hearing was scheduled for March 18, 1998, at which time defense counsel requested that an interpreter be appointed for the defendant. Defense counsel stated that No interpreter was found and none was involved in the present case.
¶ 7. On March 30, 1998, the defendant waived his right to a preliminary hearing and an Information was filed. At that time, the circuit court queried the defendant as to whether he was having any difficulty understanding his attorney or understanding what was going on in the hearing. The defendant replied,
¶ 8. On September 21, 1998, an Amended Information was filed, the defendant filed a Request to Enter Plea and Waiver of Rights form, and the defendant entered a plea of no contest. Question 17 of the Request to Enter Plea and Waiver of Rights form states:
I understand that if I am not a citizen of the United States of America, a plea of guilty or no contest to the offense(s) for which I am charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law.
¶ 9. The defendant initialed the blank in the margin to indicate that he understood the statement.5 The form also noted that he had completed the ninth grade in school, and the attorney wrote that the defendant could read, write, and understand the English language "20% and with help."
¶ 10. Prior to accepting the plea of no contest, the circuit court questioned the defendant in detail, including asking if he was confident that he could understand what was going on in the proceeding, to which the defendant replied, "A little bit, not much." However, at no time during the questioning did the circuit court ask the defendant whether he understood what the word "deportation" meant. Moreover, the circuit court failed to comply with Wis. Stat. § 971.08(1)(c), which requires that before a court accepts a plea of guilty or no contest, it shall give the advice set forth in § 971.08(1)(c) that deportation may result from the plea.
¶ 11. On January 6, 1999, the defendant was sentenced to consecutive sentences totaling 25 years in prison, including ten years for being a party to the crime of burglary, ten years for being a party to the crime of robbery, and five years for false imprisonment.
¶ 12. Following his conviction, the defendant received a written notice from the federal government ordering him to appear at a deportation hearing. The defendant appeared and was subsequently ordered deported because of the conviction resulting from his no-contest plea.
¶ 13. The defendant filed a post-conviction motion seeking to withdraw his plea of no contest on several grounds, including the claim that he entered the plea without understanding the deportation consequences of the plea. The circuit court denied the motion. The court of appeals reversed the circuit court and remanded the cause for a hearing and findings of fact regarding the defendant's understanding of the possibility of deportation at the time he entered his no-contest plea.6
¶ 14. On remand, the circuit court held an evidentiary hearing, at which the defendant testified that his first knowledge regarding deportation occurred when he was notified in prison about the deportation hearing. When asked whether he would have pled no contest if he understood that he could be deported to Laos, the defendant replied, "Oh, no, no, no." The defendant testified that he could not read the Request to Enter Plea and Waiver of Rights form and that he relied on his attorney to read it to him. He further testified to having no recall of a discussion with his attorney regarding Question 17 on the form, which discusses the potential for deportation if a defendant pleads guilty or no contest.
¶ 15. Defense counsel also testified at the evidentiary hearing. She stated that she had no independent recollection of discussing deportation or Question 17 with the defendant, but that it was her practice to go carefully through the form and to discuss with her clients the consequences of a plea, which could include deportation.
¶ 16. The circuit court denied the defendant's motion to withdraw his no-contest plea. The court of appeals affirmed the circuit court's denial, concluding that the State presented sufficient evidence to support the circuit court's finding that the defendant knew of the deportation consequences at the time he entered his plea.
¶ 17. We have stated the facts fully as they relate to whether the defendant knew of the deportation consequences of his plea at the time of his plea. The parties briefed and argued this issue. They disagree whether the State has failed to show by clear and convincing evidence that the defendant knowingly, voluntarily, and intelligently entered a plea of no contest. We do not address this issue because we conclude that it is not determinative of the question whether the circuit court must permit the defendant to withdraw his plea. Accordingly we asked the parties for supplemental letter briefs, asking them in effect to address the following issue, which we conclude is determinative: If a circuit court fails to give the deportation warning required by Wis. Stat. § 971.08(1)(c) when accepting a guilty or no-contest plea, is a defendant entitled to withdraw the plea later upon a showing that the plea is likely to result in deportation, regardless of whether the defendant was aware of the deportation consequences of the plea at the time the defendant entered the plea?
¶ 18. Three Wisconsin statutes come into play in resolving the issue presented: § 971.08(1)(c) (); § 971.08(2) (); and § 971.26 (harmless error).
¶ 19. We begin our analysis with Wis. Stat. § 971.08(1)(c), which requires the circuit court to give a defendant advice about deportation before accepting a plea of guilty or no contest. Wisconsin Stat. § 971.08(1)(c) states:
[1]
¶ 20. The circuit court failed to comply with this statutory mandate...
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