State v. Romero-Georgana

• Decision Date: 23 July 2014
• Docket Number: No. 2012AP55.,2012AP55.
• Citation: 849 N.W.2d 668,2014 WI 83
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Andres ROMERO–GEORGANA, Defendant–Appellant–Petitioner.
• Court: Wisconsin Supreme Court

849 N.W.2d 668

2014 WI 83

STATE of Wisconsin, Plaintiff–Respondent,

v.Andres ROMERO–GEORGANA, Defendant–Appellant–Petitioner.

No. 2012AP55.

Supreme Court of Wisconsin.

Argued April 3, 2014.

Decided July 23, 2014.

For the defendant-appellant-petitioner, there were briefs by Sara Kelton Brelie and Byron C. Lichstein, and law student Diana Eisenberg, and Frank J. Remington Center, University of Wisconsin Law School, Madison. Oral argument by Sara Kelton Brelie.

For the plaintiff-respondent, the cause was argued by William L. Gansner, assistant attorney general, with whom on the brief was J.B. Van Hollen, attorney general.

DAVID T. PROSSER, J.

¶ 1 This is a review of an unpublished decision of the court of appeals. ¹ The issue presented has been framed by the defendant as whether the defendant is “entitled to an evidentiary hearing based on his Wis. Stat. § 974.06 motion alleging ineffective assistance of postconviction counsel for failing to raise a strong argument for plea withdrawal[.]”

¶ 2 This somewhat innocuous statement of the issue requires the court to conduct a wide-ranging discussion of postconviction procedure before it determines whether the defendant's Wis. Stat. § 974.06 (2011–12) ² motion provides a sufficient reason for failing to bring his present claims in an earlier postconviction proceeding and whether the § 974.06 motion alleges sufficient facts that, if true, would entitle the defendant to relief. As is often the case, the procedural history is crucial to the court's conclusions.

¶ 3 We conclude the following.

¶ 4 First, a defendant who alleges in a § 974.06 motion that his postconviction counsel was ineffective for failing to bring certain viable claims must demonstrate that the claims he wishes to bring are clearly stronger than the claims postconviction counsel actually brought. See State v. Starks, 2013 WI 69, ¶ 6, 349 Wis.2d 274, 833 N.W.2d 146. However, in evaluating the comparative strength of the claims, reviewing courts should consider any objectives or preferences that the defendant conveyed to his attorney. A claim's strength may be bolstered if a defendant directed his attorney to pursue it.

¶ 5 Second, the defendant has not offered a sufficient reason in his third postconviction motion for failing to raise his § 974.06 claim in his second postconviction motion. Without a sufficient reason, a defendant may not bring a claim in a § 974.06 motion if that claim “could have been raised in a previously filed sec. 974.02 motion and/or on direct appeal.” State v. Escalona–Naranjo, 185 Wis.2d 168, 173, 517 N.W.2d 157 (1994). Consequently, the defendant's claim is barred.

¶ 6 Third, even if the § 974.06 motion were not barred on “sufficient reason” grounds, the motion does not allege sufficient facts that, if true, would entitle the defendant to relief. The defendant failed to allege that the plea withdrawal claim was clearly stronger than the resentencing claim. He does not specifically state which postconviction attorney was ineffective and instead makes an ambiguous reference to “postconviction counsel.” The motion then focuses almost exclusively on trial counsel and does not provide facts regarding postconviction counsel's performance. Consequently, the defendant's motion falls far short of what is required, and the circuit court properly determined that he is not entitled to an evidentiary hearing.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶ 7 On April 7, 2006, the State filed a complaint charging Andres Romero–Georgana (Romero–Georgana) with first-degree sexual assault of a child under the age of 13 contrary to Wis. Stat. § 948.02(1) (2005–06). The complaint alleged that Romero–Georgana had sexual contact with the seven-year-old daughter of the woman with whom he was in a relationship. On May 17, 2006, assistant state public defender Carrie LaPlant (Attorney LaPlant) was appointed to represent Romero–Georgana. On May 26, 2006, Romero–Georgana waived his right to a preliminary examination, and an information repeating the charge in the complaint was filed that day. On June 23, 2006, Romero–Georgana entered a plea of not guilty before Brown County Circuit Judge J.D. McKay. At this arraignment, Judge McKay scheduled the case for trial and informed Romero–Georgana, “If you're not a citizen of this country, a conviction could lead to your deportation.” ³

¶ 8 On October 20, 2006, Romero–Georgana completed an English and Spanish Plea Questionnaire/Waiver of Rights form in which he pled no contest to first-degree sexual assault of a child. As part of the plea agreement, the State agreed not to file any additional charges against the defendant and agreed not to make any specific sentencing recommendation. At a plea hearing on November 17, 2006, Romero–Georgana entered a no-contest plea with the aid of an interpreter. The court accepted Romero–Georgana's plea and found him guilty of first-degree sexual assault of a child under the age of 13.

¶ 9 At the plea hearing, the circuit court failed to advise Romero–Georgana that he could be deported as a result of his plea, as required by Wis. Sat. § 971.08(1)(c) (2005–06). The pertinent portion of the statute provides that before accepting a plea of guilty or no contest, the court shall:

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.”

Wis. Stat. § 971.08(1)(c) (2005–06).

¶ 10 Romero–Georgana's plea came more than four years after this court decided State v. Douangmala, 2002 WI 62, 253 Wis.2d 173, 646 N.W.2d 1, a case in which this court emphasized the importance of the statutory requirement to advise the defendant about possible deportation as well as the statutory remedy of plea withdrawal. SeeWis. Stat. § 971.08(2) (2005–06).

¶ 11 On January 19, 2007, Judge McKay sentenced Romero–Georgana to 12 years of initial confinement and four years of extended supervision. At the sentencing hearing, Attorney LaPlant stated: “We fully expect that as soon as he is released from custody, whenever that may be, that he will be deported back to Mexico. And he does want that to happen. He does want to return home as soon as he can.”

¶ 12 Unfortunately, in sentencing Romero–Georgana, the court failed to consider the sentencing guidelines on the record as was then required by Wis. Stat. § 973.017(2)(a) (2007–08). See State v. Grady, 2007 WI 81, 302 Wis.2d 80, 734 N.W.2d 364. The remedy for failure to comply with § 973.017(2)(a) (2007–08) was resentencing.

¶ 13 After judgment of conviction was filed on January 23, 2007, Romero–Georgana filed a notice of intent to pursue postconviction relief, and he requested appointment of postconviction counsel. Assistant state public defender Suzanne Hagopian (Attorney Hagopian) was appointed to represent Romero–Georgana in postconviction and appellate proceedings.

¶ 14 Several weeks later, on March 20, 2007, the U.S. Department of Justice Immigration and Naturalization Service (INS) sent an Immigration Detainer—Notice of Action form to Dodge Correctional Institution where Romero–Georgana was serving his sentence. The form advised the institution that INS had started an investigation to determine whether Romero–Georgana was subject to deportation and required that INS be notified at least 30 days before Romero–Georgana was released.

A. First Postconviction Motion and Appeal

¶ 15 On June 11, 2007, Attorney Hagopian filed a motion for extension of time to file a postconviction motion or notice of appeal. In the motion, Attorney Hagopian stated that she had met with Romero–Georgana and, with the help of an interpreter, discussed two possible postconviction claims: one regarding the validity of the no-contest plea and the other for resentencing based on the court's failure to go through the sentencing guidelines on the record.

¶ 16 On July 20, 2007, Romero–Georgana filed a postconviction motion pursuant to Wis. Stat. § (Rule) 809.30(2)(h) (2007–08) seeking resentencing or sentence modification in the alternative. The postconviction motion alleged that the sentencing court failed to consider the relevant sentencing guidelines, as required under Wis. Stat. § 973.017(2)(a) (2007–08) and Grady, 302 Wis.2d 80, 734 N.W.2d 364, which had been decided less than a month earlier. The motion did not mention any defect in the plea colloquy.

¶ 17 On August 23, 2007, the circuit court held a hearing and denied Romero–Georgana's postconviction motion. Attorney Hagopian filed a notice of appeal on August 29, 2007.

¶ 18 On April 22, 2008, the court of appeals issued an order reversing the judgment and remanding the case for resentencing because Judge McKay failed to consider the sentencing guidelines on the record. State v. Romero–Georgana, No. 2007AP2042–CR, unpublished order (Wis.Ct.App. Apr. 22, 2008). Soon after the court of appeals issued its decision, Attorney Hagopian sent Romero–Georgana a letter explaining the decision and informing him of his right to judicial substitution. Several weeks later, Attorney Hagopian spoke to Romero–Georgana on the phone and discussed judicial substitution. With the help of an interpreter, Attorney Hagopian told Romero–Georgana that he should discuss judicial substitution with the attorney who would represent him at resentencing.

¶ 19 Assistant state public defender William FitzGerald (Attorney FitzGerald) was appointed to represent Romero–Georgana at resentencing. Attorney FitzGerald received a letter from Romero–Georgana on May 29, 2008, stating that Romero–Georgana wanted to substitute his judge. On May 30, 2008, Attorney FitzGerald filed a motion requesting a judicial substitution. A judicial assignment order was filed on June 6, 2008, in which Brown County Circuit Judge Kendall M. Kelley was...