State v. Lagundoye

• Decision Date: 30 January 2004
• Docket Number: No. 02-2137 through 02-2139.
• Citation: 2004 WI 4,674 N.W.2d 526,268 Wis.2d 77
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Olayinka Kazeem LAGUNDOYE, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

268 Wis.2d 77

2004 WI 4

674 N.W.2d 526

STATE of Wisconsin, Plaintiff-Respondent, v. Olayinka Kazeem LAGUNDOYE, Defendant-Appellant-Petitioner.

Nos. 02--2139.

Supreme Court of Wisconsin.

Oral argument October 13, 2003.

Decided January 30, 2004.

For the defendant-appellant-petitioner there were briefs by Godfrey Y. Muwonge and Godfrey Y. Muwonge's Law Office, Milwaukee, and oral argument by Godfrey Y. Muwonge.

For the plaintiff-respondent the cause was argued by James M. Freimuth, assistant attorney general, with whom on the brief was Peggy A. Lautenschlager, attorney general.

¶ 1. JON P. WILCOX, J.

Olayinka Kazeem Lagundoye (Lagundoye) seeks review of a published court of appeals decision, State v. Lagundoye, 2003 WI App 63, 260 Wis. 2d 805, 659 N.W.2d 501, which affirmed an order of the Milwaukee County Circuit Court, Victor Manian, Judge, denying his post-conviction motions seeking a vacatur of judgments rendered against him in three separate circuit court criminal cases in Milwaukee County.

I. ISSUE

¶ 2. The issue presented on appeal is whether the rule we announced in State v. Douangmala, 2002 WI 62, 253 Wis. 2d 173, 646 N.W.2d 1, can be applied retroactively to a defendant who exhausted his direct appeal rights before Douangmala was decided, such that he is entitled to withdraw his pleas in criminal cases where the circuit court failed to advise him of the possible deportation consequences of his plea under Wis. Stat. § 971.08(1)(c) (1997-98)¹ and the defendant meets the requirements for plea withdrawal under Wis. Stat. § 971.08(2). We conclude that the rule we announced in Douangmala is a new rule of criminal procedure that can be retroactively applied only to cases that were not yet final when Douangmala was decided. Further, we conclude that because the rule in Douangmala does not fall within either of the two narrow exceptions to this general rule of nonretroactivity, it cannot be applied retroactively to collateral appeals. Finally, we conclude that under the law, as it existed when Lagundoye entered his pleas, the error of the circuit courts in failing to advise Lagundoye of the possible deportation consequences of his plea under § 971.08(1)(c) was harmless. Accordingly, we affirm the court of appeals' decision.

II. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶ 3. On February 6, 1997, Lagundoye pled guilty to theft² and burglary³ charges as part of a plea agreement. He was sentenced on these two charges, and judgment was rendered on March 27, 1997. On April 24, 1998, Lagundoye, in a separate criminal case,⁴ pled guilty to two counts of forgery pursuant to a plea agreement. He was thereafter sentenced on June 30, 1998, and judgment of conviction was entered on July 1, 1998.

¶ 4. It is undisputed that the circuit court in all three cases failed to comply with the mandates of Wis. Stat. § 971.08.⁵ Section 971.08(1) provides:

Before the court accepts a plea of guilty or no contest, it shall do all of the following:

(c) Address the 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."

. . . .

Section 971.08(2) provides the remedy if the circuit court fails to comply with the above mandate:

If a court fails to advise the defendant as required by sub. (1)(c) and the 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, the court on the defendant's motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. This subsection does not limit the ability to withdraw a plea of guilty or no contest on any other grounds.

Wis. Stat. § 971.08(2).

¶ 5. At the time Lagundoye entered his pleas, the law governing the application of § 971.08 was controlled by State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. 1993). The court of appeals in Chavez concluded that the interaction of § 971.08 and Wis. Stat. § 971.26⁶ required an appellate court to employ a harmless-error analysis when a defendant sought to withdraw his plea based on a circuit court's failure to comply with the dictates of § 971.08(1)(c). Id. at 370-71. The court of appeals in Chavez further concluded that a circuit court's failure to comply with the mandate in § 971.08(1)(c) constituted harmless error if the defendant was "aware of the potential for deportation when he entered his plea." Id. at 368, 371.⁷ Lagundoye did not seek a plea withdrawal under § 971.08(2) for any of his three convictions on direct appeal.

¶ 6. Lagundoye's application for status as a lawful permanent resident was denied on December 21, 2001. On January 3, 2002, the United States Department of Immigration and Naturalization Service notified Lagundoye that it had commenced deportation proceedings against him arising out of his criminal convictions. Thereafter, on June 19, 2002, this court issued its opinion in Douangmala, 253 Wis. 2d 173. In Douangmala, we concluded:

Wis. Stat. § 971.08(1)(c) sets forth the language a circuit court must use to inform a defendant of the deportation consequences of entering a plea of guilty or no contest. . . . If a circuit court fails to give the statutorily mandated advice and if a defendant moves the court and demonstrates that the plea is likely to result in the defendant's deportation, then § 971.08(2) requires the circuit court to vacate the conviction and to permit the defendant to withdraw the guilty or no-contest plea.

Id., ¶ 46.⁸

¶ 7. On July 22, 2002, Lagundoye moved to reopen and vacate the aforementioned judgments of convictions and withdraw his respective pleas under § 971.08(2),⁹ seeking to benefit from the freshly annunciated rule in Douangmala. At the time Lagundoye filed his motion to vacate his convictions, he had completely discharged his sentences relating to the theft and burglary convictions, but was still serving his sentence in relation to the two forgery convictions.

¶ 8. The circuit court denied Lagundoye's motion for post-conviction relief with respect to the two convictions in which he had completely served his sentence because it found it lacked jurisdiction to consider a collateral challenge to a guilty plea where the defendant was no longer in state custody. With respect to his remaining conviction, the circuit court denied Lagundoye's motion on the grounds that the rule in Douangmala was a new rule of criminal procedure and applies retroactively only to cases that were pending on direct review or not yet final when Douangmala was decided.

¶ 9. The court of appeals did not address the jurisdictional issue relied upon by the circuit court with respect to two of Lagundoye's convictions; instead, it affirmed the circuit court's conclusion that the rule in Douangmala does not apply retroactively to defendants who exhausted their direct appeal rights before Douangmala was decided. Lagundoye, 260 Wis. 2d 805, ¶ 3 & n.2. The court of appeals then concluded that all three of Lagundoye's cases were governed by the pre-Douangmala harmless-error analysis, and Lagundoye was not entitled to withdraw his pleas because he did not contend that he did not know of the deportation consequences of his pleas. Id., ¶¶ 10-11.

¶ 10. On August 5, 2002, the United States Department of Justice Immigration Court entered an order deporting Lagundoye to Nigeria. Counsel has informed the court that Lagundoye was in fact deported to Nigeria subsequent to the court of appeals' decision.¹⁰

III. ANALYSIS

¶ 11. There are three lines of cases that govern whether a rule should be applied retroactively to criminal cases on appeal. These cases establish that whether a rule should be applied retroactively is dependent upon two threshold determinations: 1) whether the rule is a new rule of substance or new rule of criminal procedure and 2) whether the case which seeks to benefit from retroactive application is on direct review or is final, such that it is before the court on collateral review.

¶ 12. First, a new rule of substantive criminal law is presumptively applied retroactively to all cases, whether on direct appeal or on collateral review. See Bousley v. United States, 523 U.S. 614, 620-21 (1998)

; State v. Howard, 211 Wis. 2d 269, 283-85, 564 N.W.2d 753 (1997), overruled on other grounds by State v. Gordon, 2003 WI 69, ¶ 40, 262 Wis. 2d 380, 663 N.W.2d 765. Second, Wisconsin follows the federal rule announced in Griffith v. Kentucky, 479 U.S. 314, 328 (1987), that new rules of criminal procedure are to be applied retroactively to all cases pending on direct review or non-finalized cases still in the direct appeal pipeline. State v. Koch, 175 Wis. 2d 684, 694, 499 N.W.2d 152 (1993).

¶ 13. Third, a new rule of criminal procedure generally cannot be applied retroactively to cases that were final before the rule's issuance under the federal nonretroactivity doctrine announced by the Supreme Court plurality opinion in Teague v. Lane, 489 U.S. 288 (1989), and later adopted by the majority of the Court in Graham v. Collins, 506 U.S. 461, 467 (1993). Under Teague, a new rule of criminal procedure is not applied retroactively to cases on collateral review unless it falls under either of two well-delineated exceptions. Teague, 489 U.S. at 307. First, a new rule of criminal procedure should be applied retroactively to cases on collateral review if it "places `certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Id. (citation omitted). Second, a new rule of criminal procedure should be applied retroactively to cases on collateral review if it encompasses procedures that "`are implicit in the concept of...