High court to hear arguments on case centering on plea colloquies

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When a judge neglects to warn non-citizen criminal defendants that entering a guilty or no-contest plea could result in deportation, should that omission be grounds for allowing the plea to be withdrawn?

A state statute suggests that the answer to that question is always “yes.” The Wisconsin Department of Justice argues, though, that a Supreme Court case from 2010 means it’s time for a revision to that hard-and-fast rule, particularly in instances when it can be shown that a defendant was fully aware of the likely consequences of a plea decision without having to be told by a judge.

The Wisconsin Supreme Court will get right to the heart of the matter in State v. Jose Alberto Reyes Fuerte, one of the first cases the justices have decided to take up for oral arguments this term.

Up for scrutiny in the case will be Wis. State 971.08.

This statute requires judges who are considering accepting a plea to first not only ask defendants whether they are acting voluntarily but also, in cases involving non-citizens, if they are aware that a conviction could result in their deportation. This litany of questions is known as a “plea colloquy.”

“The judge has a constitutional and statutory duty to make sure (the plea is) free, knowing and voluntary,” said Ray Dall’Osto, a criminal defense attorney at Gimbel Reilly Guerin & Brown.

The same statute allows pleas to be withdrawn if: a judge fails to give the proper advice and a defendant can show that a particular plea is likely to result in deportation or other adverse consequences. In 2002, in the case of State v. Douangmala, the Wisconsin Supreme Court bolstered the statute by finding that it is not subject to the so-called harmless-error rule. In other words, even if it can be shown that a defendant was fully aware of the immigration consequences of making a certain plea, a judge’s failure to give the proper warning can still be grounds for a withdrawal.

That finding was the grounds on which Jose Reyes Fuertes attempted to withdraw the guilty plea he had entered in 2014 to two crimes: fleeing an officer, which is a felony; and driving with a controlled substance in his system. Following his sentencing, he tried to withdraw his plea, contending that the judge in his case had failed to follow Wis. Stat. 971.08 and ignored the rule set forth in Douangmala.

At first, Reyes Fuerte was unsuccessful. Columbia County Circuit Court Judge Alan White denied Reyes Fuerte’s motion, agreeing with prosecutors that he had been informed of the possibility of deportation by a plea questionnaire and waiver form that he had signed.

But the Court of Appeals, in a decision handed down last year, sided with Reyes Fuerte. Citing Douangmala, the appellate judges sent the case back to circuit court for an evidentiary hearing looking at whether his plea would most likely result in deportation.

Meanwhile, the state Department of Justice has asked the Wisconsin Supreme Court to strike Douangmala. The reason? The U.S. Supreme Court decision in the case of Padilla v. Kentucky, in which the justices held that criminal defense attorneys must advise their non-citizen clients about the possible immigration consequences of pleading guilty or no contest.

The DOJ contends that Padilla makes judges’ duty to inform defendants of deportation consequences redundant. Regardless of whether judges issue the proper warning, defendants, because of Padilla, should have already learned of those consequences from their attorneys.

But Dall’Osto says the DOJ is missing a second, crucial part of the court’s holding in Padilla.

“Padilla said that, but Padilla also said that if a client is not informed by the court as well as defense counsel, then that’s a violation of fundamental constitutional rights and harmless error should not apply because this is error per se,” he said. “This is so fundamental, it would be like someone being forced to plead guilty. … It’s really a radical argument by the state.”

Dall’Osto said the state is failing to recognize that criminal defense attorneys often don’t take time to explain legal terms carefully. And legal jargon, which can be puzzling even to people whose first language is English, can be particularly obscure to non-citizens.

“Unfortunately, in reality, I’ve seen on a regular basis people run through this, on the bench, outside of the courtroom, take 3-4 minutes, say ‘Sign here,’ and we’re done,” Dall’Osto said.

Also, non-citizens might be representing themselves in court and not even have the benefit of defense counsel.

Former Sheboygan County District Attorney Joe DeCecco says he can understand why Dall’Osto and other criminal defense attorneys may be alarmed if the court overturns Doumagala. He argued, though, that the state has a point, especially when defendants sign a written form like the one that was presented to Reyes Fuerte.

DeCecco, though, noted that defendants always have the option of arguing that their counsel was ineffective and saying that their conviction should be thrown out because their criminal defense attorney hadn’t followed the requirements of Padilla.

Acknowledging that this area of the law is complex, Dall’Osto said he protects himself against claims of ineffective assistance of counsel or legal malpractice by consulting immigration attorneys whenever he is representing a client who is not a U.S. citizen. His colleagues in criminal defense, he said, would be wise to do the same.

He also noted that convictions of certain crimes, under federal law, bar non-citizen clients from mounting any sort of legal defense against deportation.

“You do not pass go,” Dall’Osto said. “You do not collect 200 dollars. You’re out. First, you’ll be detained without bail. (You’ll be) in a situation that has less protections and amenities than a prison, some of them run by private contractors … You may be held for 2 years, maybe more, before deportation occurs.”