Criminal Procedure — plea withdrawal — immigration consequences

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — plea withdrawal — immigration consequences

Counsel’s failure to advise a defendant concerning clear deportation consequences of his plea bargain is prejudicial if the defendant shows that “a decision to reject the plea bargain would have been rational under the circumstances.”

Under Padilla, we repeat, ‘a rational decision not to plead guilty does not focus solely on whether [a defendant] would have been found guilty at trial—Padilla reiterated that an alien defendant might rationally be more concerned with removal than with a term of imprisonment.’ United States v. Orocio, 645 F.3d 630, 643 (3d Cir. 2011), abrogated in part on other grounds by Chaidez v. United States, 133 S. Ct. 1103 (2013). In numerous post-Padilla cases, courts have concluded that despite the benefit of a great reduction in the length of the potential prison sentence, a rational noncitizen defendant might have rejected a plea bargain and risked trial for the chance at avoiding deportation. For instance, in State v. Sandoval, 249 P.3d 1015 (Wash. 2011), the court recognized that even though Sandoval’s plea agreement reduced his penalty exposure from possible life imprisonment to a maximum of one year imprisonment, ‘[g]iven the severity of the deportation consequence … Sandoval would have been rational to take his chances at trial.’ Id., ¶¶21-22. Reasoning similarly, in Orocio, the court concluded that a defendant might rationally have proceeded to trial even though he faced a minimum ten-year sentence: Mr. Orocio was only 27 years old at the time he entered the plea agreement, and he rationally could have been more concerned about a near-certainty of multiple decades of banishment from the United States than the possibility of a single decade in prison. Orocio, 645 F.3d at 645; see also Denisyuk v. State, 30 A.3d 914, 929 (Md. 2011) (‘We are not alone in understanding that many noncitizens might reasonably choose the possibility of avoiding deportation combined with the risk of a greater sentence over assured deportation combined with a lesser sentence.’).”

“That is the proper analysis here, too: not merely whether Mendez would have won his trial but whether in his particular circumstances, given his family in the United States and his fear of return to Mexico, he might rationally have decided to reject the plea and risked four and one-half years in prison, so as to preserve a chance of avoiding deportation.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP1862 State v. Mendez

Dist. II, Waukesha County, Domina, J., Brown, J.

Attorneys: For Appellant: Ziemer, David, Glendale; Christopher, Marc E., Milwaukee; For Respondent: Schimel, Brad, Waukesha; Noet, Nancy A., Madison