State v. Negrete

• Decision Date: 12 July 2012
• Docket Number: No. 2010AP1702.,2010AP1702.
• Citation: 343 Wis.2d 1,2012 WI 92,819 N.W.2d 749
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Abraham C. NEGRETE, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

343 Wis.2d 1

819 N.W.2d 749

2012 WI 92

STATE of Wisconsin, Plaintiff–Respondent,

v.Abraham C. NEGRETE, Defendant–Appellant–Petitioner.

No. 2010AP1702.

Supreme Court of Wisconsin.

Argued Feb. 8, 2012.

Decided July 12, 2012.

For the defendant-appellant-petitioner, there were briefs filed by Jeffrey W. Jensen, Milwaukee, and oral argument by Jeffrey W. Jensen.

For the plaintiff-respondent, the cause was argued by Sarah Burgundy and the brief was filed by Thomas E. Dietrich, assistant attorneys general, with whom on the brief was J.B. Van Hollen, attorney general.

PATIENCE DRAKE ROGGENSACK, J.

[343 Wis.2d 7]¶ 1 This is a review of an unpublished decision of the court of appeals, which affirmed the circuit court's denial of Abraham Negrete's postconviction motion to withdraw a guilty plea.¹ The plea at issue was entered in 1992, and no transcript of the plea hearing is available. The sole issue on review is whether Negrete was entitled to an evidentiary hearing on his plea withdrawal motion under Wis. Stat. § 971.08(2) (2009–10).² RESOLUTION OF THIS issue turns on the pleading requirements of a motion to withdraw a guilty or no contest plea under Wis. Stat. § 971.08 (2). Section 971.08(2) provides that a defendant has a statutory right to withdraw a guilty or no contest plea upon proving that: (1) the circuit court failed to personally advise the defendant of the potential deportation consequences of the plea; and (2) the plea is likely to result in one of the enumerated immigration consequences.

[343 Wis.2d 8]¶ 2 In support of his motion, Negrete stated in an affidavit that he “ do[es] not recall” whether the plea-accepting court advised him of the potential deportation consequences of his plea.³ Negrete's affidavit also states that he is now subject to deportation proceedings. However, Negrete's plea questionnaire indicates that he was advised of the immigration consequences prior to making his plea.

¶ 3 We conclude that Negrete's allegations are insufficient to warrant an evidentiary hearing. Where a defendant seeks to withdraw a guilty plea under Wis. Stat. § 971.08(2), but there is no transcript of the plea hearing, the pleading requirements for such motions are those set forth in State v. Bentley, 201 Wis.2d 303, 310, 548 N.W.2d 50 (1996). Under the applicable Bentley-type standard, Negrete's affidavit has not alleged sufficient facts that, if true, would entitle him to withdraw his guilty plea. Specifically, Negrete has failed to sufficiently allege that the plea-accepting court did not tell him of the potential immigration consequences of his plea. In addition, his motion fails to allege sufficient facts demonstrating a causal nexus between his guilty plea and the likelihood of any immigration consequences. Therefore, Negrete's motion to withdraw his guilty plea under § 971.08(2) was properly denied.

I. BACKGROUND

¶ 4 In April 1992, Abraham Negrete pleaded guilty to one count of second-degree sexual assault of a person under the age of 16 years, in violation of Wis. Stat. § 948.02(2) (1991–92). As a result, Negrete was sentenced to 18 months of probation and ordered to pay restitution. After serving his probation and paying restitution, Negrete was discharged in April 1994.

¶ 5 On March 10, 2010, nearly 18 years after his conviction, Negrete moved to withdraw his guilty plea for the 1992 sexual assault charge. The motion was based on Wis. Stat. § 971.08(2),⁴ which allows a defendant to withdraw a guilty or no contest plea where a plea-accepting court fails to personally advise the defendant of the potential immigration consequences of the plea,⁵ and that plea is likely to result in an adverse immigration consequence listed in § 971.08(2). Negrete's motion alleged that when accepting Negrete's plea, the court “did not inform” him of the potential immigration consequences of his plea, and that Negrete is now “the subject of deportation proceedings.”

[343 Wis.2d 10]¶ 6 Whereas Negrete's motion affirmatively stated that the court “did not inform Negrete” of the potential immigration consequences, his affidavit filed in support of the motion was equivocal. His affidavit stated, “I do not recall the court, or my lawyer, ever telling me of [the potential immigration consequences] of the plea.” Negrete also averred that he had not understood the potential immigration consequences of his plea, and that had he known, he would not have entered the guilty plea.

¶ 7 At the time of his conviction in 1992, Negrete indicated that he did not intend to seek postconviction relief; accordingly, no transcript of the plea hearing was created from the court reporter's notes. Moreover, Negrete's attorney for the 1992 offense has died, and the presiding judge in that case, the Honorable Leo F. Schlaefer, has retired. Negrete stated in his motion to withdraw his plea that, if given the opportunity, he would testify that he was not warned on the record at the time he entered his plea.

¶ 8 In the circuit court, Negrete's argument for plea withdrawal relied largely on this court's decision in State v. Douangmala, 2002 WI 62, 253 Wis.2d 173, 646 N.W.2d 1, which rejected the harmless error approach when a defendant seeks to withdraw a plea under Wis. Stat. § 971.08(2). Id., ¶ 46. Under the harmless error approach, a defendant alleging error under § 971.08(2) would not have been allowed to withdraw his plea if the State could show that the defendant was otherwise aware of the likely immigration consequences of his plea. See State v. Chavez, 175 Wis.2d 366, 368–71, 498 N.W.2d 887 (Ct.App.1993).

¶ 9 In response to Negrete's motion, the State emphasized that, at the time of Negrete's plea, motions to withdraw under Wis. Stat. § 971.08(2) were subject to the harmless error approach established in Chavez.Id. The State relied on our decision in State v. Lagundoye, 2004 WI 4, 268 Wis.2d 77, 674 N.W.2d 526, which provided that Douangmala 's repudiation of the harmless error approach was not retroactively applicable because Douangmala 's holding was a new rule of criminal procedure, and such rules are not applied to cases that were final before the rule's issuance. Id., ¶ 2. Because Negrete's case was final long before our decision in Douangmala, the State argued, harmless error applied to Negrete's motion.

¶ 10 In support of its argument that any error was harmless, the State primarily relied on Negrete's “Request to Enter Plea and Waiver of Rights” form (“plea questionnaire”), which Negrete submitted to the court at the time of his 1992 plea. That form includes numerous statements to which a pleading defendant must agree before entering a plea. Most statements include an adjacent blank space where a defendant must place his initials to indicate his understanding of the statement. The statement relevant to our discussion here, paragraph 20 of the plea questionnaire, provides in language substantially similar to the statutory warning in Wis. Stat. § 971.08(1)(c):

If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest and a finding of guilty by the Court of the offense(s) with which you are charged in the Criminal Complaint or Information, may result in deportation, exclusion from admission to this Country or a denial of naturalization under federal law.

¶ 11 In the blank space adjacent to that paragraph, Negrete's initials appear. Also, near the end of the document, following the initialed paragraphs, there is a statement that “I have read this entire document and I understand its contents.” That provision is signed by “Abe Negrete,” and dated April 29, 1992, the same day as the plea hearing. Finally, the plea questionnaire is signed by Negrete's then-attorney, Gary McGregor, who acknowledged by his signature that he “discussed and explained the contents of the questionnaire to the defendant, that the defendant acknowledged his understanding of each item in this questionnaire, including any post-conviction relief procedures, and that [the attorney knows] the above signature to be the defendant's.”

¶ 12 In deciding whether to grant Negrete's motion to withdraw, the circuit court concluded that, based on Lagundoye, the harmless error analysis applied. In light of the plea questionnaire, the circuit court determined that any failure by the plea-accepting court to personally advise Negrete of the deportation consequences of his plea was harmless because the questionnaire demonstrated that Negrete was independently aware of those consequences. Accordingly, the court denied Negrete's motion without an evidentiary hearing.

¶ 13 The court of appeals affirmed in an unpublished decision. That court assumed that Negrete had not been personally advised as required under Wis. Stat. § 971.08(1)(c), but that, nonetheless, such error was harmless. Given the conflict between Negrete's allegations and the plea questionnaire in the record, the court concluded that nothing would have been added by an evidentiary hearing at which Negrete would have been the sole witness. Therefore, based on the entirety of the record, the court held that there was no question that Negrete was aware of the potential immigration consequences of his plea, and that any failure to personally advise him, if such a failure occurred, was harmless.

[343 Wis.2d 13]¶ 14 Negrete petitioned this court for review, which we granted. We now affirm the decision of the court of appeals.

II. DISCUSSION

A. Standard of Review

¶ 15 Negrete asserts that under Wis. Stat. § 971.08(2), he is entitled to withdraw his guilty plea. This requires us to interpret the language of that statute to determine what a defendant must plead in his motion to satisfy the statutory elements. Statutory interpretation presents a question of law that we review independently of the circuit court and the court of appeals, although benefiting from those courts' analyses. Rasmussen v. Gen. Motors Corp., 2011 WI 52, ¶ 14, 335 Wis.2d 1, 803 N.W.2d 623. Where the...