High court: Attorney correctly advised client to plead guilty

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The Wisconsin Supreme Court has ruled that an attorney correctly advised a client that entering a guilty plea would strongly increase the client’s chances of being deported.

The case stems from a post-conviction motion filed in March 2013 by Hatem Shata of Milwaukee that contends Shata should be able to withdraw a guilty plea on grounds that his trial counsel performed ineffectively under Padilla vs. Kentucky, the 2010 case in which the U.S. Supreme Court held that attorneys must tell clients who live in the U.S. illegally that entering a guilty plea carries a risk of deportation.

Shata, an Egyptian national who has lived in the U.S. for about 22 years, was charged in April 2012 with possession with the intent to deliver marijuana, as a party to a crime.

According to the complaint filed by the Milwaukee County District Attorney, Shata confessed that he was using his coffee shop, Sphinx Café in Milwaukee, to sell marijuana. Investigators were told that Shata’s marijuana supplier stored the drugs, sometimes up to 20 pounds of it, in the café.

Shata had pleaded guilty in an October 2012 plea hearing. He was sentenced in November 2012 to five years of in prison, with one year of confinement and four years of extended supervision.

In the post-conviction motion, Shata argued that his lawyer, James Toran, did not inform him that if he was convicted, deportation was mandatory. Shata also contended that if he had known that, he would have insisted on going to trial.

However, the justices disagreed. According to the decision issued Thursday, Toran correctly advised Shata because Shata’s deportation was not an absolute certainty. Executive action and the Department of Homeland Security’s prosecutorial discretion can block deportation, according to the court.

The court also noted that during the plea hearing, Toran told the court circuit court that he had told Shata that, because Shata was not a U.S. citizen, he could get deported for pleading guilty to the charge. The justices also noted that he told the circuit court that he was satisfied with his attorney’s representation.

The justices on Thursday reversed the 2014 decision of the Court of Appeals on Shata’s post-conviction motion, 5-2. In her dissent, Justice Ann Walsh Bradley wrote that Padilla vs. Kentucky requires attorneys to inform clients that conviction would result in “automatic deportation” and that State vs. Hata involved identical circumstances.

The majority, she wrote, makes two errors in its analysis:

1. It doesn’t require attorneys to look at the relevant immigration statutes before giving advice and
2. By saying it is acceptable conduct for attorneys to advise clients with the same language as a plea colloquy, the majority misunderstands Padilla and mistakenly combines a court’s obligations in the Fifth Amendment with the obligations of an attorney as stated in the Sixth Amendment.

“Together these errors severely undermine the standards for attorney conduct set forth in Padilla,” Bradley wrote. “The probable result is that clients will be left with only vague and incomplete advice about the immigration consequences of entering a plea.”

Justice Shirley Abrahamson joined Bradley’s dissent. Follow @erikastrebel