State v. Shata
| Decision Date | 09 July 2015 |
| Docket Number | No. 2013AP1437–CR.,2013AP1437–CR. |
| Citation | 364 Wis.2d 63,868 N.W.2d 93 |
| Parties | STATE of Wisconsin, Plaintiff–Respondent–Petitioner, v. Hatem M. SHATA, Defendant–Appellant. |
| Court | Wisconsin Supreme Court |
For the plaintiff-respondent-petitioner, the cause was argued by Nancy Noet, assistant attorney general, with whom on the briefs was Brad Schimel, attorney general.
For the defendant-appellant, there was a brief by Amelia L. Bizzaro and Bizzaro Law LLC, Milwaukee. Oral argument by Amelia L. Bizzaro.
An amicus curiae brief was filed by Stacy Taeuber on behalf of the University of Wisconsin Law School, Immigrant Justice Clinic. Oral argument by Stacy Taeuber.
¶ 1 This is a review of an unpublished decision of the court of appeals,1 which reversed the Milwaukee County Circuit Court's2 judgment of conviction and order denying Hatem Shata's (“Shata”) post-conviction motion to withdraw his guilty plea to one count of possession with intent to deliver marijuana, as party to a crime.
¶ 2 Shata argues that the circuit court erred by denying his motion to withdraw his guilty plea. He argues that he should be allowed to withdraw his plea on the basis of ineffective assistance of counsel under Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
¶ 3 Specifically, Shata argues that, under Padilla, his trial counsel performed deficiently by failing to inform him that he would be subject to “mandatory” deportation if convicted.3 Although trial counsel did inform Shata that he faced a “strong chance” of deportation if convicted, Shata argues that this advice was deficient because trial counsel should have told him that “his conviction would absolutely result in deportation.” Shata argues that immigration law clearly provides that he would have been subject to mandatory deportation upon conviction. Shata argues that this deficient performance prejudiced him because he would have insisted on going to trial had he known that the guilty plea would subject him to mandatory deportation. He argues that deportation has been his primary concern throughout this case because he has lived in the United States for 22 years and does not want to be separated from his children and wife, who live in New Jersey.
¶ 4 The State argues that the circuit court correctly denied Shata's post-conviction motion because his trial counsel did provide effective assistance. The State argues that Shata's attorney did not perform deficiently. The State contends that under Padilla, Shata's attorney was merely required to inform him that he was at risk of being deported if convicted. The State argues that Shata's attorney went above and beyond that requirement by telling Shata that he faced a “strong chance” of deportation. The State argues that Shata's conviction made him “deportable” but did not make his deportation an absolute certainty. The State also argues that, if Shata's counsel performed deficiently, Shata was not prejudiced thereby. The State argues that Shata would have pled guilty even if he had been told that deportation was an absolute certainty upon conviction. Alternatively, the State argues that this court should remand the matter to the circuit court for a hearing on the issue of prejudice.
¶ 5 We conclude that Shata is not entitled to withdraw his guilty plea because he did not receive ineffective assistance of counsel. Specifically, Shata's attorney did not perform deficiently. Shata's attorney was required to “give correct advice” to Shata about the possible immigration consequences of his conviction. Padilla, 559 U.S. at 369, 130 S.Ct. 1473. Shata's attorney satisfied that requirement by correctly advising Shata that his guilty plea carried a “strong chance” of deportation. Shata's attorney was not required to tell him that his guilty plea would absolutely result in deportation. In fact, Shata's deportation was not an absolute certainty. Executive action, including the United States Department of Homeland Security's exercise of prosecutorial discretion, can block the deportation of deportable aliens.4 Because Shata's trial counsel did not perform deficiently, we do not address the issue of prejudice.
¶ 6 Shata is an Egyptian foreign national and is not a United States citizen. He has been living in the United States since approximately 1991. In December 2011 he opened a coffee shop called the Sphinx Café, located in Milwaukee.
¶ 7 On April 18, 2012, the Milwaukee County District Attorney's Office filed a criminal complaint charging Shata with one count of possession with intent to deliver marijuana, as party to a crime, contrary to Wis. Stat. §§ 961.41(1m)(h)(3), 939.50(3)(g), and 939.05 (2011–12).5
¶ 8 According to the complaint, investigators obtained a warrant to search the Sphinx Café after receiving information that a substantial amount of marijuana was being stored there. On February 16, 2012, shortly before executing the search warrant, investigators conducted surveillance of the Sphinx Café. While conducting surveillance, a detective saw Shata carry a large cardboard box from the Sphinx Café and place it in the trunk of a car parked on the street. Shata was accompanied by one of his employees, Amanda Nowak (“Nowak”). Shortly thereafter, Shata returned to the Sphinx Café and Nowak drove away in the car. Law enforcement officers subsequently conducted a traffic stop of the car. Nowak consented to a search of the car, and officers found 2,319 grams (approximately five pounds) of marijuana inside of the box that Shata had placed in the trunk. Also on February 16 investigators executed the search warrant. A search of Shata's person revealed 2.9 grams of marijuana and 1.7 grams of cocaine, which he claimed were for personal use.
¶ 9 The complaint further alleged that Nowak and Shata confessed to selling marijuana.
Specifically, Shata confessed to selling marijuana through the Sphinx Café in order to support his family. Nowak told investigators that Shata let his marijuana supplier store marijuana at the Sphinx Café, sometimes up to 20 pounds. Nowak also told investigators that Shata sold marijuana and that he would front marijuana to her, she would sell it, and then she would give the sale proceeds to Shata.
¶ 10 On May 2, 2012, Shata made an initial appearance and a signature bond was set. On May 15 the circuit court held a preliminary hearing. Shata waived his right to a preliminary examination and was bound over for trial. The State then filed an information and provided a copy to Shata, who waived a reading and pled not guilty. The information charged Shata with the same count that was in the complaint.
¶ 11 On October 5, 2012, Shata appeared in court for a pre-trial hearing that turned into a plea hearing. Shata's attorney, James Toran (“Attorney Toran”), informed the court that Shata “doesn't want to be deported.” Attorney Toran asked the court to adjourn the trial date so that he could “deal with” the immigration consequences that Shata could face if convicted. The court denied the request for an adjournment but offered to schedule another pre-trial hearing. The court passed the case to allow Attorney Toran to confer with Shata and the State.
¶ 12 After a discussion off the record, the parties appeared before the court again. The State described a plea agreement to the court. Specifically, if Shata pled guilty, the State would recommend two years of initial confinement followed by two years of extended supervision, imposed and stayed for 24 months of probation. As a condition of probation, the State would recommend 12 months of confinement in the House of Corrections. The maximum penalty that Shata faced was “a fine not to exceed $25,000 or imprisonment not to exceed 10 years, or both.” Wis. Stat. §§ 939.50(3)(g), 961.41(1m)(h)(3). Shata faced a “term of confinement in prison” not to exceed five years. Wis. Stat. § 973.01(2)(b)(7).
Shata then stated that he wished to enter a guilty plea.
¶ 14 The court then explained to Shata the maximum penalties he faced upon conviction and that, as a convicted felon, he would be barred from possessing a firearm and would be barred from voting in any election until his civil rights are restored. The circuit court next informed Shata of the possible immigration consequences of his plea:
After the circuit court explained the elements of the offense charged, Shata pled guilty.
¶ 15 The circuit court then noted that Shata had signed a plea questionnaire and waiver of rights form that contained the same immigration warning.6
¶ 16 The court then confirmed with Attorney...
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